United States v. Leonardo Reed , 632 F. App'x 108 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4132
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONARDO DEMARCUS REED,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00381-TDS-1)
Submitted: October 20, 2015 Decided: December 8, 2015
Before SHEDD, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN,
Greensboro, North Carolina, for Appellant. Graham Tod Green,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonardo Demarcus Reed pled guilty in September 2004 to
possession with intent to distribute an unspecified quantity of
heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012)
(Count 1), and possession of a firearm during or in relation to
a drug trafficking offense, in violation of 18 U.S.C. § 924(c)
(2012) (Count 2). The district court sentenced Reed to 21
months’ imprisonment on Count 1, to be followed by 120 months on
Count 2, and a 10-year term of supervised release. The district
court later lowered Reed’s sentence to 56 months.
Reed completed his term of incarceration and began to serve
his supervised release. After Reed violated the terms of his
supervised release, he was sentenced to seven months’
imprisonment on Count 1, to be followed by eight months on Count
2. The district court also imposed a second period of
supervised release: 113 months for Count 1 and 112 months for
Count 2, to run concurrently.
Reed completed his custodial sentence and began his second
term of supervised release, after which Reed again violated the
terms of his supervised release. Reed admitted the violations
alleged in the revocation petition and amended revocation
petition. The district court consequently revoked Reed’s
supervised release and sentenced him to an aggregate term of 69
months’ imprisonment, consisting of 17 months on Count 1 and 52
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months on Count 2, to be served consecutively. Reed now appeals
the revocation judgment.
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 the district court
erred in declining to impose a sentence within the policy
statement range computed at sentencing (37 to 46 months) or to
run the revocation sentences concurrently. Although not
particularly framed as such, we view this argument as a
challenge to the substantive reasonableness of the revocation
sentence. Because the district court did not commit any error
in selecting the aggregate 69-month revocation sentence, we
affirm the revocation judgment.
“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). A revocation
sentence that is both within the applicable statutory maximum
and not “plainly unreasonable” will be affirmed on appeal.
United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). In
so evaluating a sentence, this court assesses it for
reasonableness, utilizing “the procedural and substantive
considerations” employed in evaluating an original criminal
sentence. United States v. Crudup, 461 F.3d 433, 438 (4th Cir.
2006).
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A revocation sentence is procedurally reasonable if the
district court has considered both the policy statements
contained in Chapter Seven of the Sentencing Guidelines and the
18 U.S.C. § 3553(a) (2012) factors enumerated in 18 U.S.C.
§ 3583(e) (2012). Id. at 439. The district court must also
provide an explanation for its chosen sentence, although this
explanation “need not be as detailed or specific” as is required
for an original sentence. United States v. Thompson, 595 F.3d
544, 547 (4th Cir. 2010).
A revocation sentence is substantively reasonable if the
district court states a proper basis for concluding that the
defendant should receive the sentence imposed. Crudup, 461 F.3d
at 440. Only if it finds a sentence to be procedurally or
substantively unreasonable will we determine whether the
sentence is “plainly” so. Id. at 439.
Applying these principles, Reed’s challenge to the
substantive reasonableness of his sentence fails. Prior to
sentencing Reed, the district court offered an extensive
explanation for the sentence in terms of the sentencing factors
it deemed to be the most relevant in this case and a
particularized response to defense counsel’s arguments. The
district court’s sentencing comments reveal the court’s
consideration of Reed’s individual circumstances, namely, his
history and characteristics and the nature and circumstances of
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his violative behavior. 18 U.S.C. § 3553(a)(1); see 18 U.S.C.
§ 3583(e). The court clearly expressed its view that the
selected sentence was necessary to deter Reed from continuing to
sell and use drugs and to protect the public from any further
crimes he may commit. 18 U.S.C. § 3553(a)(2)(B)-(C).
Imposition of the statutory maximum terms of imprisonment,
less the terms of imprisonment Reed served in fulfilling the
prior revocation judgment, reflected the court’s serious
response to Reed’s chronic recidivism and refusal to conduct
himself in accordance with the law, despite having received
multiple opportunities to do so. Because the court amply
justified the selected sentence, which was within the statutory
maximum, we discern no substantive unreasonableness, plain or
otherwise, in this sentence.
Finally, we conclude that, pursuant to our long-established
precedent, the district court did not abuse its discretion by
imposing consecutive terms of imprisonment. Where a defendant
is sentenced to multiple terms of imprisonment at the same time,
the district court may order that the sentences on revocation of
supervised release run concurrently or consecutively. 18 U.S.C.
§ 3584(a) (2012); see United States v. Johnson, 138 F.3d 115,
118-19 (4th Cir. 1998) (“[W]e hold that the district court had
the authority to impose consecutive sentences upon [defendant]
when it revoked his supervised release.”). The court once again
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cited Reed’s serious and repeated recidivism as the reason to
decline defense counsel’s request for concurrent sentences, and
we cannot say that doing so was substantively unreasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious grounds for appeal. We
therefore affirm the district court’s revocation judgment. This
court requires that counsel inform Reed, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Reed requests that a petition 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 Reed. 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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