United States v. Darnell Brown ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4976
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARNELL LEON BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:05-cr-00812-HMH-2)
Submitted: May 8, 2013 Decided: May 24, 2013
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darnell Leon Brown appeals the district court’s
judgment revoking his supervised release and sentencing him to
the statutory maximum of eighty-four months’ imprisonment.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning whether the district court abused its
discretion in revoking Brown’s supervised release and in
imposing sentence. Brown was informed of his right to file a
pro se supplemental brief, but he has not done so. We affirm.
Although we ordinarily review the district court’s
revocation of supervised release for abuse of discretion, see
United States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999),
Brown did not object to the district court’s revocation of his
supervised release; we therefore review for plain error. United
States v. Olano, 507 U.S. 725, 731-32 (1993) (providing
standard). Because Brown admitted to possessing controlled
substances, firearms, and ammunition, the district court was
obligated to revoke Brown’s supervised release and impose a term
of imprisonment. See 18 U.S.C. § 3583(g) (2006). Accordingly,
we conclude that the district court did not err—plainly or
otherwise—by revoking Brown’s supervised release.
In examining a sentence imposed upon revocation of
supervised release, this court “takes a more deferential
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appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (internal quotation marks omitted). A sentence
imposed upon revocation of supervised release should be affirmed
if it is within the statutory maximum and not plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 437 (4th
Cir. 2006). In reviewing a revocation sentence, “we first
decide whether the sentence is unreasonable,” following the same
general principles we apply to our review of original sentences.
Id. at 438. Only if we find that a sentence is either
procedurally or substantively unreasonable will we determine
whether the sentence is “plainly” so. Id. at 439.
A revocation sentence is procedurally reasonable if
the district court has considered both the applicable 18 U.S.C.
§ 3553(a) (2006) factors, see 18 U.S.C. § 3583(e) (2006), and
the policy statements set forth in Chapter Seven of the U.S.
Sentencing Guidelines Manual (“USSG”) (2012). Crudup, 461 F.3d
at 439. The district court also must provide an explanation of
its chosen sentence, although this explanation “need not be as
detailed or specific” as is required for an original sentence.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A
sentence is substantively reasonable if the district court
states a proper basis for concluding that the defendant should
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receive the sentence imposed. Crudup, 461 F.3d at 440. “[T]he
court ultimately has broad discretion to revoke its previous
sentence and impose a term of imprisonment up to the statutory
maximum.” Id. at 439 (internal quotation marks omitted).
Because Brown did not object to any aspect of his sentence, our
review is for plain error. See United States v. Bennett, 698
F.3d 194, 199-200 (4th Cir. 2012), cert. denied, 133 S. Ct. 1506(2013).
Our review of the record reveals that the district
court committed no procedural error. Although the district
court plainly erred by considering § 3553(a)(2)(A), a prohibited
factor under 18 U.S.C. § 3583(e), we conclude that this error
did not affect Brown’s substantial rights. See Olano, 507 U.S.
at 731-32; United States v. Hargrove, 625 F.3d 170, 183-84 (4th
Cir. 2010). When imposing Brown’s revocation sentence, the
district court emphasized Brown’s breach of trust, observing
that Brown had continued to engage in criminal activity after
being charged in both state and federal court. Moreover, the
district court considered several permissible factors under
§ 3583(e), including the need to deter Brown from engaging in
criminal activity and to protect the public. See 18 U.S.C.
§ 3553(a)(2)(B), (C); Bennett, 698 F.3d at 201 (upholding
sentence when prohibited factor “constituted only a minor
fragment of court’s reasoning” and when court’s “concern with
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[defendant’s] breach of trust . . . far outweighed any other
concerns”). Given the broad discretion to revoke supervised
release and impose a term of imprisonment up to the statutory
maximum, Brown’s sentence is reasonable. See Crudup, 461 F.3d
at 439 (stating that, if sentence is reasonable, inquiry ends).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Brown, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Brown requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Brown. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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