United States v. Simmons , 290 F. App'x 603 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY LEE SIMMONS, a/k/a JJ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:02-cr-00289-PMD-7)
Submitted: August 21, 2008 Decided: August 25, 2008
Before WILLIAMS, Chief Judge, and KING and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Michael Rhett DeHart, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Lee Simmons appeals the modification of supervised
release imposed after he violated the terms of his supervised
release. Simmons’ counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in his view, there
are no meritorious issues for appeal. Counsel suggests, however,
that the district court abused its discretion in sentencing Simmons
to serve three months in a community corrections center. Simmons
was advised of his right to file a pro se supplemental brief, but
he has not done so. The Government declined to file a brief.
Finding no error, we affirm.
This court will affirm a sentence imposed after
revocation or modification of supervised release if it is within
the applicable statutory maximum and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006),
cert. denied, 127 S. Ct. 1813 (2007). This court explained that it
must first assess the sentence for reasonableness, “follow[ing]
generally the procedural and substantive considerations that we
employ in our review of original sentences, . . . with some
necessary modifications to take into account the unique nature of
supervised release revocation sentences.” Id. at 438-39; see
United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In
applying the ‘plainly unreasonable’ standard, we first determine,
using the instructions given in Gall[v. United States, 128 S. Ct.
2
586, 597 (2007)], whether a sentence is ‘unreasonable.’”). Should
this court conclude a sentence is reasonable, it should affirm the
sentence. Crudup, 461 F.3d at 439. Only if a sentence is found
procedurally or substantively unreasonable will this court “decide
whether the sentence is plainly unreasonable.”* Id. (emphasis in
original); see Finley, 531 F.3d at 294. Although the district
court must consider the Chapter 7 policy statements and the
requirements of 18 U.S.C.A. §§ 3553(a), 3583 (West 2000 & Supp.
2008), “the [district] court ultimately has broad discretion to
revoke its previous sentence and impose a term of imprisonment up
to the statutory maximum.” Crudup, 461 F.3d at 439 (internal
quotation marks and citations omitted).
Simmons’ counsel questions whether the three-month
sentence to be served in a community corrections center is
unreasonable. Simmons does not challenge the procedural aspects of
his sentence. In reviewing the substantive reasonableness of a
sentence for abuse of discretion,
the court will, of course, take into account
the totality of the circumstances, including
the extent of any variance from the Guidelines
range . . . . [I]f the sentence is outside the
Guidelines range, the court may not apply a
presumption of unreasonableness. It may
consider the extent of the deviation, but must
give due deference to the district court’s
*
“[F]or purposes of determining whether an unreasonable
sentence is plainly unreasonable, plain is synonymous with clear
or, equivalently, obvious.” Crudup, 461 F.3d at 439 (internal
quotation marks and citation omitted).
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decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.
Gall, 128 S. Ct. at 597.
Here, the district court thoroughly stated its reasons
for imposing the three month placement. We conclude that the
district court’s imposition of the sentence is reasonable. Based
on the conclusion that the sentence is reasonable, “it necessarily
follows that [Simmons’] sentence is not plainly unreasonable.”
Crudup, 461 F.3d at 440; see Finley, 531 F.3d at 297.
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 modification of the terms of
Simmons’ supervised release. This court requires that counsel
inform Simmons, in writing, of the right to petition the Supreme
Court of the United States for further review. If Simmons 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 Simmons. 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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