United States v. White

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4701
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDAL J. WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:04-cr-00041-PMD-1)
Submitted: December 16, 2008 Decided: February 3, 2009
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Eric John Klumb, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendal J. White was convicted by a magistrate judge of
violating his probation and was sentenced to ten months in
prison. White appealed to the district court, which affirmed.
White now appeals to this court. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court erred in revoking
probation and imposing sentence but concluding that there are no
meritorious issues for appeal. White was advised of his right
to file a pro se brief but did not file such a brief. We
affirm.
“[W]e review probation revocation sentences . . . to
determine if they are plainly unreasonable.” United States v.
Moulden, 478 F.3d 652, 656 (4th Cir. 2007). This requires us to
first determine if the sentence is procedurally or substantively
unreasonable; if it is not unreasonable, our analysis ends, and
we affirm. Only if the sentence is procedurally or
substantively unreasonable will we consider whether it is also
plainly unreasonable. United States v. Crudup, 461 F.3d 433,
439-40 (4th Cir. 2006).
A sentence imposed upon revocation of probation is
procedurally reasonable if the sentencing court considered the
policy statements set forth in Chapter 7 of the U.S. Sentencing
Guidelines Manual and the 18 U.S.C. § 3553(a) (2006) factors
2
that it is permitted to consider. See 18 U.S.C. § 3583(e)
(2006); Crudup, 461 F.3d at 440. Such a sentence is
substantively reasonable if the sentencing court stated a proper
basis for concluding that the defendant should receive the
sentence imposed, up to the statutory maximum. Id.Here, the magistrate judge determined after a hearing
that White had committed the probation violations as charged.
Revocation of probation and imposition of a term of imprisonment
were therefore authorized. See 18 U.S.C. § 3565(a)(2) (2006).
White committed Grade C probation violations, see USSG
§ 7B1.1(a)(3), p.s., and his criminal history category was III.
His recommended Guidelines range was 5-11 months, see USSG
§ 7B1.4(a), p.s. The magistrate judge considered this range as
well as the applicable § 3553(a) sentencing factors when
imposing sentence. We conclude that his sentence was not
unreasonable.
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, counsel may move in this court for leave to withdraw
3
from representation. Counsel’s motion must state that a copy of
the motion was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
4