United States v. Elwood Gregory , 591 F. App'x 220 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELWOOD S. GREGORY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:04-cr-00030-HCM-FBS-1)
Submitted: January 28, 2015 Decided: February 4, 2015
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Rodolfo Cejas, II, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Eric M. Hurt, Assistant United
States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elwood S. Gregory appeals the district court’s
judgment revoking his supervised release and sentencing him to
twenty-one months’ imprisonment followed by one year of
supervised release. Gregory contends that his sentence is
plainly unreasonable because, he claims, the district court
disregarded evidence of his intellectual disability, which
prevents his sentence from accomplishing the 18 U.S.C. § 3553(a)
(2012) goals for which the district court imposed it. Finding
no error, we affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will
affirm a sentence imposed after revocation of supervised release
if it is within the applicable statutory maximum and not
“plainly unreasonable.” United States v. Crudup, 461 F.3d 433,
438 (4th Cir. 2006). In determining whether a revocation
sentence is plainly unreasonable, this court first assesses the
sentence for unreasonableness, following the procedural and
substantive considerations that are at issue during its review
of original sentences. Id. at 438-39. In this initial inquiry,
we take 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
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F.3d 652, 656 (4th Cir. 2007) (internal quotation marks
omitted).
A supervised release revocation sentence is
procedurally reasonable if the district court properly
calculates the advisory policy statement range and explains the
sentence adequately after considering the policy statements and
the applicable 18 U.S.C. § 3553(a) factors. 18 U.S.C. § 3583(2012); U.S. Sentencing Guidelines Manual § 7B1.4, p.s. (2013)
(revocation table); Crudup, 461 F.3d at 439. A revocation
sentence is substantively reasonable if the district court
states a proper basis for concluding that the defendant should
receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440. Only if a sentence is found
procedurally or substantively unreasonable will we “then decide
whether the sentence is plainly unreasonable.” Id. at 439(emphasis omitted).
Initially, we find that the twenty-one month term of
imprisonment is not unreasonable. In imposing it, the district
court considered the appropriate policy statement range and
§ 3553(a) factors, sufficiently explained its reasoning, and
stated a proper basis for imposing this term of imprisonment.
With respect to the one-year term of supervised
release imposed by the revocation sentence, our review of the
record discloses that the district court properly calculated the
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advisory policy statement range, adequately explained Gregory’s
term of supervised release after considering the relevant
§ 3553(a) factors, and stated a proper basis for concluding that
Gregory should receive the term of supervised release imposed.
Contrary to Gregory’s assertions, the court did not disregard
evidence of his intellectual disability; in fact, the court
expressly relied on it when fashioning discretionary conditions
on Gregory’s supervised release. Accordingly, we find no
procedural or substantive error in the sentence.
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
this court and argument would not aid the decisional process.
AFFIRMED
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