United States v. Smoot , 242 F. App'x 943 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOWARD ALTON SMOOT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:00-cr-00005-6)
Submitted: July 24, 2007 Decided: July 27, 2007
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Emily Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Alton Smoot appeals his twenty-four month term of
imprisonment imposed after the district court revoked his
supervised release for committing another federal, state, or local
crime, a Grade A violation pursuant to U.S. Sentencing Guideline
Manual (“USSG”) § 7B1.1(a)(1) (2006). Smoot’s attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Smoot was notified of his right to file a supplemental brief, but
has not done so. Smoot’s sole issue on appeal is that the district
court’s sentence of the statutory maximum of twenty-four months1 is
unreasonable.2 We affirm.
We review revocation sentences to determine whether they
are “plainly unreasonable” with regard to those 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), factors applicable to
supervised release revocation sentences. United States v. Crudup,
461 F.3d 433, 437 (4th Cir. 2006). We accord broad discretion to
a district court to revoke supervised release and impose a term of
1
The Revocation Table suggested by the policy statements in
Chapter Seven of the USSG provided for a guideline range of thirty-
three to forty-one months of imprisonment, based on the violation
and a criminal history category of VI. USSG § 7B1.4(a), p.s.
(Revocation Table). However, because the guideline range exceeded
the statutorily authorized maximum sentence of twenty-four months,
the statutory sentence shall be substituted for the guideline
range. See 18 U.S.C. § 3583(e)(3); USSG § 7B1.4(b)(1).
2
Smoot does not challenge the district court’s decision to
revoke his supervised release, and indeed, stipulated to the
violations which form the basis of his sentence.
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imprisonment up to the statutory maximum. Id. at 440 (citing
United States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005)).
Smoot cites to United States v. Moreland, 437 F.3d 424(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006), in support of his
assertion that the district court erred because it did not “appear
to adequately and properly consider” the statutory factors and gave
excessive weight to particular § 3553(a) factors because it stated
that it sentenced Smoot based on its need to protect the public.
However, Moreland does not apply in revocation cases because
Chapter Seven, unlike the other chapters in the sentencing
guidelines, does not contain any guidelines, but rather policy
statements. See United States v. Davis, 53 F.3d 638, 640 n.6 (4th
Cir. 1995) (addressing the nature of the Chapter Seven policy
statements); see also Crudup, 461 F.3d at 439.
Here, Smoot was sentenced at the applicable statutory
maximum of two years. The district court sentenced Smoot after
hearing argument from him and his attorney, and after reviewing
documentation Smoot submitted in support of leniency. The issues
were fully presented for the district court’s determination, which
supports the conclusion that the court considered all the
appropriate factors. Moreover, the district court’s consideration
of the evidence and the appropriate statutory factors is implicit
in the court’s ultimate ruling. See, e.g., Davis, 53 F.3d at 642.
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Accordingly, we find that Smoot’s sentence was not plainly
unreasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Smoot’s conviction and sentence. This
court requires that counsel inform her client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that copy thereof was
served on the client.
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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