United States v. Harnett , 373 F. App'x 372 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4686
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISA HARNETT, a/k/a Isa Hardnett,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:03-cr-00244-F-1)
Submitted: March 30, 2010 Decided: April 13, 2010
Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isa Harnett, originally convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
& 924 (2006), appeals from the district court’s order revoking
his supervised release and sentencing him to twenty-four months’
imprisonment. At his revocation hearing, Harnett admitted to
engaging in criminal conduct while on supervised release and
failing to report his arrest within seventy-two hours. On
appeal, Harnett argues that his sentence was plainly
unreasonable because the district court employed a flawed
procedure in sentencing him. We affirm.
This court reviews a sentence imposed as a result of a
supervised release violation to determine whether the sentence
was plainly unreasonable. United States v. Crudup, 461 F.3d
433, 437 (4th Cir. 2006). The first step in this analysis is to
determine whether the sentence was unreasonable. Id. at 438.
This court, in determining reasonableness, follows generally the
procedural and substantive considerations employed in reviewing
original sentences. Id. If a sentence imposed after a
revocation is not unreasonable, this court will not proceed to
the second prong of the analysis — whether the sentence was
plainly unreasonable. Id. at 439.
Also, although a district court must consider the
policy statements in Chapter Seven of the sentencing guidelines
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along with the statutory requirements of 18 U.S.C. § 3583 (2006)
and 18 U.S.C. § 3553(a), the district court has broad discretion
to revoke supervised release and impose a term of imprisonment
up to the statutory maximum. Crudup, 461 F.3d at 439 (quoting
United States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005)).
Finally, on review, this court will assume a “deferential
appellate posture concerning issues of fact and the exercise of
discretion.” Crudup, 461 F.3d at 439 (internal quotation
omitted).
Harnett argues that the district court failed to
consider all the applicable § 3553(a) factors and failed to make
an individualized assessment based on the facts presented. The
district court was not required to “robotically tick through”
every subsection of § 3553(a). United States v. Montes-Pineda,
445 F.3d 375, 380 (4th Cir. 2006). Nor was the district court
required to discuss every § 3553(a) factor on the record.
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Harnett does not mention which § 3553(a) factor the district
court failed to consider, and the district court’s thoughtful
and detailed statement at sentencing establishes that the court
considered the relevant § 3553(a) factors. Accordingly,
Harnett’s argument is without merit.
Harnett also argues that his sentence was procedurally
unreasonable because the district court did not specifically
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address his efforts while in prison to better himself or that he
had served a state prison sentence for the offense conduct that
was the basis for his supervised release violation. However, at
sentencing, Harnett never actually argued for a particular
sentencing outcome. Therefore, his claim is reviewed for plain
error. United States v. Thompson, __ F.3d __, 2010 WL 624118,
*3 (4th Cir. Feb. 23, 2010) (No. 09-4247). To establish plain
error, Harnett must demonstrate that: (1) there was error; (2)
the error was “plain;” and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). If the three elements of this standard are met, this
court may still exercise its discretion to notice the error only
if “the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quoting United
States v. Young, 470 U.S. 1, 15 (1985) (internal quotations
omitted)).
Harnett fails to show any error by the district court
in explaining the basis for the sentence imposed. At
sentencing, Harnett, through counsel, merely highlighted facts
for the district court to consider in possible mitigation of
Harnett’s conduct. The court’s explanation for Harnett’s
sentence indicates that the district court simply found those
facts insufficient to overcome the severity of Harnett’s
conduct, his performance on supervised release, the benefit
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Harnett received from the Fed. R. Crim. P. 35 motion, and
Harnett’s extensive criminal history. See United States v.
Moulden, 478 F.3d 652, 657 (4th Cir. 2007). Accordingly, we
affirm the judgment of the district court. We dispense with
oral argument as 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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