United States v. Fred Gerth, III ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4715
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRED LOUIS GERTH, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:06-cr-00040-FL-1)
Submitted: March 8, 2013 Decided: March 14, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fred Louis Gerth, III, appeals the district court’s
judgment revoking his supervised release and imposing a
twenty-four-month prison term. Gerth challenges this sentence,
arguing that it is plainly unreasonable. We affirm.
A district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm a sentence imposed after revocation of supervised release
if it is within the applicable statutory maximum and not
“plainly unreasonable.” United States v. Crudup, 461 F.3d 433,
437, 439-40 (4th Cir. 2006). In determining whether a
revocation sentence is plainly unreasonable, we first assess the
sentence for unreasonableness, “follow[ing] generally the
procedural and substantive considerations that we employ in our
review of original sentences.” Id. at 438.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Sentencing Guidelines’ Chapter 7 advisory policy statements and
the 18 U.S.C. § 3553(a) (2006) factors it is permitted to
consider in a supervised release revocation case. 18 U.S.C.A.
§ 3583(e) (West 2006 & Supp. 2012); Crudup, 461 F.3d at 439.
Such a sentence is substantively reasonable if the district
court stated a proper basis for concluding the defendant should
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receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440. Only if a sentence is found
procedurally or substantively unreasonable will we “then decide
whether the sentence is plainly unreasonable.” Id. at 439.
A sentence is plainly unreasonable if it is clearly or obviously
unreasonable. Id.In this case, there is no dispute that Gerth’s
twenty-four-month prison sentence does not exceed the applicable
statutory maximum sentence of two years’ imprisonment, 18 U.S.C.
§ 3559(a) (2006); 18 U.S.C.A. § 3583(e)(3), and Gerth does not
assert that the district court committed any procedural errors.
Rather, he contends that his sentence is substantively
unreasonable in light of his need for mental health treatment.
After review of the parties’ briefs and the record, we
conclude that the twenty-four-month prison sentence, although
above the advisory policy statement range of four to ten months’
imprisonment, is not unreasonable. The district court
considered the advisory policy statement range and the arguments
of Gerth’s counsel for a sentence below that range. It is
apparent that the court also considered relevant § 3553(a)
factors, addressing on the record the nature and circumstances
of Gerth’s violative behavior and the need for the sentence to
protect the public and to deter Gerth. 18 U.S.C. § 3553(a)(1),
(2)(B)-(C). The court’s comments also indicate that it imposed
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a sentence above the policy statement range as a result of
Gerth’s breach of trust, despite prior lenient treatment.
See U.S. Sentencing Guidelines Manual Ch. 7, Pt. A, introductory
cmt. 3(b) (“[A]t revocation the [district] court should sanction
primarily the defendant’s breach of trust.”). We conclude that
the district court adequately explained its rationale for
imposing the twenty-four-month prison sentence and relied on
proper considerations in doing so. Based on the broad
discretion that a district court has to revoke a term of
supervised release and impose a prison term up to and including
the statutory maximum, Gerth’s revocation sentence is not
unreasonable. Therefore, we conclude that Gerth’s sentence is
not plainly unreasonable.
Accordingly, we affirm the district court’s judgment.
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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