United States v. Roane , 426 F. App'x 167 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4624
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNY JABAR ROANE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:03-cr-00257-RLW-1)
Submitted: March 30, 2011 Decided: April 29, 2011
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Valencia
Roberts, Assistant Federal Public Defender, Caroline S. Platt,
Research and Writing Attorney, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, N. G.
Metcalf, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenny Roane appeals the district court’s order
revoking his supervised release and sentencing him to fifteen
months’ imprisonment. On appeal, Roane contends that (1) there
was insufficient evidence to support the district court’s
finding that he violated a condition of his supervised release
by eluding a police officer; and (2) his sentence is plainly
unreasonable. Finding no reversible error, we affirm.
We review a district court’s judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion. United States v. Copley, 978 F.2d 829, 831 (4th
Cir. 1992). To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2006);
Copley, 978 F.2d at 831. This burden “simply requires the trier
of fact to believe that the existence of a fact is more probable
than its nonexistence.” United States v. Manigan, 592 F.3d 621,
631 (4th Cir. 2010) (internal quotation marks omitted). A
defendant challenging the sufficiency of the evidence faces a
heavy burden. United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997). In determining whether the evidence in the
record is substantial, we view the evidence in the light most
favorable to the government. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc).
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Under Virginia law, a person is guilty of felony
eluding a police officer if,
having received a visible or audible signal from any
law-enforcement officer to bring his motor vehicle to
a stop, [he] drives such motor vehicle in a willful
and wanton disregard of such signal so as to interfere
with or endanger the operation of the law-enforcement
vehicle or endanger a person.
Va. Code Ann. § 46.2-817 (LexisNexis 2010). Here, the evidence
showed that it was more probable than not that Roane disregarded
the siren and verbal direction he received from a police officer
and continued to drive his vehicle so as to endanger another
police officer stopped on the road. Thus, we conclude that the
district court did not abuse its discretion in finding that a
preponderance of the evidence showed that Roane committed a
felony by eluding a police officer.
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 unless the sentence is “plainly unreasonable” in light of
the applicable 18 U.S.C. § 3553(a) (2006) factors. United
States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006).
First, we must decide whether the sentence is
unreasonable, “follow[ing] generally the procedural and
substantive considerations that we employ in our review of
original sentences.” Id. at 438. A sentence is procedurally
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reasonable if the district court has considered the policy
statements contained in chapter seven of the U.S. Sentencing
Guidelines Manual (“USSG”) and the applicable § 3553(a) factors
and has explained adequately the sentence chosen, though it need
not explain the sentence in as much detail as when imposing the
original sentence. Crudup, 461 F.3d at 439. A sentence is
substantively reasonable if the district court states a proper
basis for its imposition of a sentence up to the statutory
maximum. Id. at 440. If, after considering the above, the
appellate court determines that the sentence is not
unreasonable, it should affirm. Id. at 439.
We hold that the district court’s imposition of a
fifteen-month term of imprisonment was not unreasonable.
Procedurally, the district court adequately explained its chosen
sentence and considered the § 3553(a) factors and USSG chapter
seven policy statements. Substantively, the district court
stated a proper basis and sentenced Roane within the statutory
maximum. See 18 U.S.C. § 3583(e)(3). Because we conclude that
Roane’s sentence is not unreasonable, we need not consider
whether it is plainly so.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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