United States v. Adrian Chavez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4056
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN CHAVEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00037-BO-1)
Submitted: October 10, 2012 Decided: October 15, 2012
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Chavez appeals the district court’s order
revoking his term of supervised release and imposing a sentence
of thirty-six months’ imprisonment. Counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal, but
questioning whether the district court erred in imposing the
maximum sentence and whether the district court provided Chavez
sufficient notice regarding the upward departure from the
Guidelines range. Chavez was given the opportunity file a pro
se supplemental brief, but has not done so. The Government
declined to file a response brief. We affirm.
A district court has broad discretion to impose a
sentence revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm a sentence imposed after revocation of supervised release
if it is within the statutory maximum and is not “plainly
unreasonable.” United States v. Crudup, 461 F.3d 433, 439-40
(4th Cir. 2006). In making this determination, we first
consider whether the sentence imposed is procedurally and
substantively unreasonable. Id. at 438. A supervised release
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
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release revocation. Id. at 438-40. “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.” Thompson, 595 F.3d at 547 (internal quotation marks
omitted). A sentence is substantively reasonable if the
district court stated a proper basis for concluding the
defendant should receive the sentence imposed, up to the
statutory maximum. 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.
After review of the record, we conclude that the
revocation sentence is both procedurally and substantively
reasonable. The thirty-six-month sentence does not exceed the
applicable statutory maximum. The district court sufficiently
explained its rationale for imposing the statutory maximum
sentence, emphasizing the dangerous nature of the weapon found
in Chavez’s possession, the severe danger posed by Chavez to the
community, and the fact that Chavez’s prior sentence had no
deterrent affect on his criminal conduct. In addition, the
district court was not required to provide Chavez advance notice
of its consideration of a sentence above the Guidelines range,
as Fed. R. Crim. P. 32.1, which governs revocation of supervised
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release, does not require advance notice of a potential sentence
in excess of the Guidelines range.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Chavez, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Chavez 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 Chavez. 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
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