United States v. Demario Pemberton ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMARIO LADARL PEMBERTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:12-cr-00055-LCB-1)
Submitted: December 10, 2019 Decided: January 2, 2020
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Stimson Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC,
Greensboro, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demario Ladarl Pemberton appeals the 13-month sentence imposed upon
revocation of his supervised release. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal
but questioning whether Pemberton’s revocation sentence is plainly unreasonable. In his
pro se supplemental brief, Pemberton challenges his original conviction for possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The
Government has declined to file a response brief. We affirm.
“A district court has broad discretion when imposing a sentence upon revocation of
supervised release. We will affirm a revocation sentence if it is within the statutory
maximum and is not plainly unreasonable.” United States v. Webb, 738 F.3d 638, 640 (4th
Cir. 2013) (citation and internal quotation marks omitted). “[W]e first consider whether
the sentence imposed is procedurally or substantively unreasonable.” Id. Only when the
sentence is unreasonable will we determine whether the sentence “is plainly so.” Id.
(internal quotation marks omitted).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding
Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) [(2012)] factors.”
United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnote omitted); see 18 U.S.C.
§ 3583(e) (2012) (listing relevant factors). “[A] revocation sentence is substantively
reasonable if the court sufficiently states a proper basis for its conclusion that the defendant
should receive the sentence imposed.” Slappy, 872 F.3d at 207 (alteration and internal
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quotation marks omitted). “A sentence within the policy statement range is presumed
reasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (internal quotation
marks omitted).
In fashioning an appropriate sentence, “the court should sanction primarily the
defendant’s breach of trust, while taking into account, to a limited degree, the seriousness
of the underlying violation and the criminal history of the violator.” U.S. Sentencing
Guidelines Manual ch. 7, pt. A(3)(b) (2018); see Webb, 738 F.3d at 641. “A court need
not be as detailed or specific when imposing a revocation sentence as it must be when
imposing a post-conviction sentence, but it still must provide a statement of reasons for the
sentence imposed.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal
quotation marks omitted). The court “must address the parties’ nonfrivolous arguments in
favor of a particular sentence, and if the court rejects those arguments, it must explain why
in a detailed-enough manner that [we] can meaningfully consider the procedural
reasonableness of the revocation sentence.” Slappy, 872 F.3d at 208. An explanation is
sufficient if we can determine “that the sentencing court considered the applicable
sentencing factors with regard to the particular defendant before it and also considered any
potentially meritorious arguments raised by the parties with regard to sentencing.” United
States v. Gibbs, 897 F.3d 199, 204 (4th Cir. 2018) (alterations and internal quotation marks
omitted). In appropriate circumstances, “[t]he context surrounding a district court’s
explanation may imbue it with enough content for us to evaluate both whether the court
considered the § 3553(a) factors and whether it did so properly.” United States v. Montes-
Pineda, 445 F.3d 375, 381 (4th Cir. 2006).
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We find no unreasonableness, plain or otherwise, in Pemberton’s sentence, which
was within the accurately calculated policy statement range. The district court consistently
emphasized Pemberton’s breach of trust, remarking that he made little progress during his
few months on supervised release, only complied with the conditions of supervised release
when he felt like it, had a defensive and negative attitude toward the probation officer and
supervision in general, was unable to maintain steady employment, and committed new
criminal conduct. The court also did not unduly rely on impermissible factors to support
the revocation sentence. Although the court did not explicitly address Pemberton’s
arguments in mitigation during its formal sentencing explanation, the court’s comments
throughout the hearing made it clear that it had considered the arguments but did not find
them persuasive.
In his pro se supplemental brief, Pemberton contends that his § 922(g)(1) conviction
is invalid after Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019) (holding that, in
§ 922(g)(1) prosecution, “the Government . . . must show that the defendant knew he
possessed a firearm and also that he knew he had the relevant status when he possessed
it”). This argument is not properly before us. See United States v. Sanchez, 891 F.3d 535,
538 (4th Cir. 2018) (“A supervised release revocation hearing is not a proper forum for
testing the validity of an underlying sentence or conviction.”).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious issues for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Pemberton, in writing, of the right to petition the
Supreme Court of the United States for further review. If Pemberton requests that a petition
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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 Pemberton.
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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