United States v. Earnest , 288 F. App'x 120 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4307
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LEE EARNEST,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:01-cr-00217-1)
Submitted: July 10, 2008 Decided: August 12, 2008
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Lex A. Coleman, Assistant Federal Public Defenders, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Gerald M. Titus, III, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Lee Earnest appeals the district court’s judgment
revoking his supervised release and imposing a twenty-four month
prison term. On appeal, Earnest does not contest the district
court’s finding that he violated the conditions of his supervised
release or the court’s revocation of supervised release, but he
contends his sentence is plainly unreasonable because it does not
further the purposes of supervised release. We affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory range
and not plainly unreasonable. United States v. Crudup, 461 F.3d
433, 439-40 (4th Cir. 2006), cert. denied, 127 S. Ct. 1813 (2007).
In making this determination, we first consider whether the
sentence is procedurally or substantively unreasonable. Id. at
438. This initial inquiry involves a more deferential appellate
posture concerning issues of fact and the exercise of discretion
than reasonableness review for guidelines sentences. United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007).
While the district court must consider the Chapter Seven
policy statements, U.S. Sentencing Guidelines Manual Ch. 7, Pt. B,
and the statutory requirements and factors applicable to revocation
sentences under 18 U.S.C.A. §§ 3553(a), 3583(e) (West 2000 & Supp.
2008), the court has broad discretion to revoke the previous
sentence and impose a term of imprisonment up to the statutory
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maximum. Crudup, 461 F.3d at 438-39. Moreover, when sentencing a
repeat violator, it is appropriate for the district court “to take
account of the fact that the policy statement range is based only
upon the severity of the single most severe violation.” Moulden,
478 F.3d at 658. Only if we find the sentence unreasonable, do we
ask whether it is “plainly” so. Crudup, 461 F.3d at 439.
We have reviewed the record and find Earnest’s sentence
is both within the prescribed statutory range and reasonable. In
imposing its sentence, the district court considered the policy
statement range and the relevant statutory requirements and
factors, and the court reasonably determined a prison sentence of
twenty-four months with no further period of supervised release was
appropriate in this case. The court also granted Earnest’s request
that he be recommended for any and all appropriate substance abuse
treatment programs offered by the Bureau of Prisons.
Earnest requested a prison sentence at or below the
policy statement range, coupled with a condition that he continue
to get some type of substance abuse treatment through an extended
period of supervised release. However, Earnest had already been
given the opportunity to complete such treatment and to comply with
his supervised release conditions but he failed to do so. The
district court found that Earnest had failed drug tests on multiple
occasions for a significant number of different drugs. He failed
to complete the inpatient treatment program as ordered by failing
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to abide by its rules, and he employed deception to maintain his
addiction. The district court reasonably concluded that drug
treatment was not an appropriate alternative to revocation and that
Earnest was not amenable to supervision by the probation office.
We therefore 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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