United States v. Michael Marshall ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4669
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL MARSHALL, a/k/a Michael Antoine Marshall,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:07-cr-00283-FDW-1)
Submitted: September 25, 2014 Decided: September 29, 2014
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, William M.
Miller, Assistant United States Attorney, Charlotte, North
Carolina; Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Marshall appeals the thirty-month sentence
imposed upon revocation of his term of supervised release
following the court’s finding that he had twenty separate
violations. Marshall contends that the upward variance sentence
was unreasonable because it was more than double the high end of
his eight-to fourteen-month policy statement range. We affirm.
We will not disturb a sentence imposed after
revocation of supervised release that is within the prescribed
statutory range and is not plainly unreasonable. United States
v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). In making this
determination, we first consider whether the sentence is
unreasonable. Id. at 438. “This initial inquiry takes a more
deferential appellate posture concerning issues of fact and the
exercise of discretion than reasonableness review for
[G]uidelines sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007) (internal quotation marks and citations
omitted).
Although a district court “ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum,” Crudup, 461 F.3d at
439 (internal quotation marks omitted), the court must consider
the Chapter Seven policy statements in the federal Sentencing
Guidelines Manual, as well as the statutory requirements and
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factors applicable to revocation sentences under 18 U.S.C.
§§ 3553(a), 3583(e) (2012).
In determining Marshall’s revocation sentence, the
district court considered the Chapter Seven policy statements,
the statutory requirements, and the relevant factors in
§ 3553(a). The court noted that Marshall, who had received a
relatively short sentence for his underlying federal fraud
related convictions, returned to his fraudulent activities
during his supervised release period by engaging in a
“sophisticated” and “calculating” fraud scheme similar to the
criminal acts for which he was previously imprisoned. (J.A.
115). The court remarked that Marshall was “a very talented
man” who used “his talents in the worst possible way” (id.) and
that he was “a pathological liar.” (J.A. 116). The court
discussed Marshall’s criminal history, personal characteristics,
the need for specific and general deterrence, and that Marshall
had “flagrantly” violated the law while on supervised release
(id.), and concluded that an upward variance sentence of thirty
months of imprisonment was appropriate. See United States v.
Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011) (providing that
court may vary from Guidelines range based on considerations
other than Guidelines-sanctioned departures).
This thirty-month sentence, below the thirty-six month
maximum sentence sought by the Government, is not plainly
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unreasonable. Crudup, 461 F.3d at 437-39. Accordingly, we
affirm the revocation 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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