United States v. Cutlip , 258 F. App'x 558 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4557
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRACY CUTLIP,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:03-cr-00014-IMK)
Submitted: November 28, 2007 Decided: December 20, 2007
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Shawn Angus Morgan, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tracy Cutlip appeals her nine month sentence of
imprisonment following revocation of her probation. Cutlip argues
the district court erred in failing to provide her the opportunity
to allocute before sentencing and that her sentence is plainly
unreasonable. Finding no reversible error, we affirm.
Cutlip first contends she was not given an opportunity to
be heard prior to sentencing. Under Fed. R. Crim. P. 32.1(b)(2)(E)
(2000), a defendant at a revocation hearing is entitled to “an
opportunity to make a statement and present any information in
mitigation.” The court gave Cutlip the opportunity to speak, and
did so before the court imposed its sentence. Although the
opportunity for Cutlip to personally address the court was not
granted at the precise moment she requested it, acceding to her
request when she made it would have interrupted an ongoing colloquy
between the court and her counsel. We therefore find Cutlip’s
claim to be without merit.
Cutlip next argues her sentence was unreasonable. This
court will affirm a sentence imposed after revocation of probation
if it is within the prescribed statutory range and is not plainly
unreasonable. See United States v. Crudup, 461 F.3d 433, 437 (4th
Cir. 2006), cert. denied, 127 S. Ct. 1813 (2007). While the
district court must consider the Chapter 7 policy statements and
statutory requirements and factors applicable to revocation
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sentences under 18 U.S.C. §§ 3553(a), 3583 (2000), the district
court ultimately has “broad discretion” to revoke the previous
sentence and impose a term of imprisonment up to the statutory
maximum. Crudup, 461 F.3d at 439 (citation omitted).
The court first considers whether the sentence imposed on
revocation falls within the applicable statutory maximum and, if
so, the court then considers whether the sentence is procedurally
and substantively reasonable. Id. at 438-40. A sentence is
procedurally reasonable if the district court considered the
advisory guidelines range and the § 3553(a) factors that it is
permitted to consider in a revocation case. 18 U.S.C. § 3583(e);
Crudup, 461 F.3d at 440. A sentence is substantively reasonable if
the district court stated a proper basis for concluding that the
defendant should receive the sentence imposed up to the statutory
maximum. Id. Only if a sentence is found to be unreasonable will
this court decide whether the sentence is plainly unreasonable.
Id. at 438-40.
A sentencing court is presumed to have considered the §
3553(a) factors, unless otherwise indicated in the record, and it
need not specifically address each factor. See United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006) (stating district court
need not “robotically tick through § 3553(a)’s every subsection” or
“explicitly discuss every § 3553(a) factor on the record”)
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(internal quotations and citation omitted); United States v.
Legree, 205 F.3d 724, 728-29 (4th Cir. 2000).
Cutlip’s sentence was within the advisory guidelines
range of three to nine months based on her Grade C violations and
did not exceed the five-year statutory maximum for her original
offense. See 18 U.S.C. § 1952(a)(3)(A) (2000). In imposing
Cutlip’s sentence, the district court stated it had considered “all
of the statutory factors.” The court thoroughly discussed during
the revocation hearing and continuation hearing its reasoning for
the sentence imposed. We find the nine month sentence, which was
below the statutory maximum and within the non-binding guidelines
range, was not unreasonable, let alone plainly so.
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 the court and
argument would not aid the decisional process.
AFFIRMED
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