United States v. Timothy Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4716
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY JARRETT BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:10-cr-00077-1)
Submitted: March 8, 2013 Decided: April 4, 2013
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant. Blaire L. Malkin, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Jarrett Brown appeals the district court’s
order revoking his supervised release and imposing a sentence of
twenty-four months’ imprisonment. On appeal, counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious issues for appeal but
questioning whether the district court imposed a plainly
unreasonable sentence considering Brown’s mental illnesses.
Brown was informed of his right to file a pro se supplemental
brief, but he has not done so. For the reasons that follow, we
affirm.
A district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm a revocation sentence if it is not “plainly
unreasonable.” United States v. Crudup, 461 F.3d 433, 439 (4th
Cir. 2006). In making this determination, we first consider
whether the sentence imposed is procedurally or substantively
unreasonable. Id. at 438-49. A revocation sentence is
procedurally reasonable if the district court has considered the
advisory policy statement range and the 18 U.S.C. § 3553(a)
(2006) factors applicable to supervised release revocation. 461
F.3d at 438-40. “A court need not be as detailed or specific
when imposing a revocation sentence as it must be when imposing
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a post-conviction sentence, but it still must provide a
statement of reasons for the sentence imposed.” Thompson, 595
F.3d at 547 (internal quotation marks omitted). A revocation
sentence is substantively reasonable if the district court
stated a proper basis for its sentencing decision. Crudup, 461
F.3d at 440. Only if a sentence is found procedurally or
substantively unreasonable will we “then decide whether the
sentence is plainly unreasonable.” Id. at 439.
We have reviewed the revocation sentence and conclude
that the sentence is both procedurally and substantively
reasonable. The twenty-four-month sentence does not exceed the
applicable statutory maximum of twenty-four months’
imprisonment. Further, the district court properly considered
the advisory Guidelines policy statement range and applicable
§ 3553(a) factors. Moreover, the district court stated a proper
basis for imposing the sentence, emphasizing the violent nature
of Brown’s offense and criminal history, the need for
deterrence, and the need to protect the public. Accordingly, we
need not address whether the revocation sentence was plainly
unreasonable.
Counsel also questions whether the district court
should have granted a downward departure based on Brown’s
diminished capacity. No motion for a downward departure based
on Brown’s diminished capacity was raised in the district court.
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Thus, we have reviewed this claim for plain error and find none.
See United States v. Hamilton, 701 F.3d 404, 410 (4th Cir. 2012)
(discussing standard of review).
In accordance with Anders, we have examined the entire
record for any meritorious issues and have found none. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Brown, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Brown 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 from representation.
Counsel’s motion must state that a copy thereof was served on
Brown. 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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