United States v. Flowers , 237 F. App'x 824 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4617
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS D. FLOWERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:01-cr-00361-RLW-2)
Submitted: July 11, 2007 Decided: July 30, 2007
Before WILKINSON and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James M. Nachman, NACHMAN & SQUIRES, L.L.P., Richmond, Virginia,
for Appellant. Peter Sinclair Duffey, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Flowers pled guilty to possession with intent to
distribute cocaine base and was sentenced to thirty-seven months’
imprisonment with a five-year term of supervised release. While on
supervised release, Flowers was charged with possession of a
firearm by a convicted felon. A jury convicted Flowers on this
charge, and the conviction served as the basis for the district
court’s revocation of supervised release. The district court
sentenced Flowers to six months’ imprisonment on revocation, to be
served consecutively to Flowers’ fifty-one month sentence on the
firearm conviction. Flowers timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), contending there are no
meritorious issues for appeal but requesting this Court review
whether the district court erroneously imposed a consecutive six-
month sentence after finding Flowers’ violated the terms of his
supervised release.1 Flowers did not file a pro se supplemental
brief, despite being notified of his right to do so. The
Government declined to file a responding brief. Finding no error,
we affirm.
1
Counsel asserts we should vacate the district court’s
revocation order if Flowers’ firearm conviction is reversed on
appeal. However, we recently affirmed Flowers’ conviction and
sentence in that case. See United States v. Flowers, No. 06-4618,
2007 WL 1533068 (4th Cir. May 24, 2007) (unpublished).
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We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory range
and not plainly unreasonable. See United States v. Crudup, 461
F.3d 433, 437 (4th Cir.), cert. denied, 127 S. Ct. 1813 (2007). In
making this determination, we first consider whether the sentence
is procedurally or substantively unreasonable, and if so, whether
it is “plainly” unreasonable. Id. While the district court must
consider the U.S. Sentencing Guidelines Manual (“USSG”) Chapter 7
policy statements and statutory requirements and factors applicable
to revocation sentences under 18 U.S.C. §§ 3553(a) and 3583 (West
2000 & Supp. 2006), the district court ultimately has broad
discretion to revoke the previous sentence and impose a term of
imprisonment up to the statutory maximum.
Flowers’ underlying cocaine distribution conviction was
punishable by a statutory maximum of forty years’ imprisonment.
See 21 U.S.C. § 841(b)(1)(B) (2000). The underlying conviction was
therefore a Class B felony, see 18 U.S.C. § 3559(a)(2) (2000), for
which Flowers could have been sentenced upon revocation of his
supervised release to a statutory maximum of three years’
imprisonment. See 18 U.S.C.A. § 3583(e)(3) (West 2000 & Supp.
2006). Based on Flowers’ Grade B violation of supervised release,
see § 7B1.1(a)(2), and criminal history category of I, the district
court properly found Flowers’ range of imprisonment upon revocation
was four to ten months. See USSG § 781.4(a) (revocation table).
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The district court’s imposition of a six-month sentence was well
within both the statutory maximum and the sentencing guidelines
range. Further, the district court properly imposed the revocation
sentence to run consecutively to Flowers’ sentence on the firearm
conviction. See USSG § 7B1.3(f). We therefore conclude Flowers’
revocation sentence was reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the revocation of Flowers’ supervised release and
the sentence imposed by the district court. This court requires
that counsel inform Flowers, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Flowers 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 Flowers.
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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