United States v. Larkin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4425
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT EDWARD LARKIN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:05-cr-00221-1)
Submitted: August 11, 2008 Decided: September 23, 2008
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Miller A. Bushong, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Edward Larkin appeals the district court’s order
revoking his supervised release and sentencing him to twelve months
of imprisonment. He argues that the sentence is plainly
unreasonable because it does not further the purposes of supervised
release. We affirm.
This court will affirm a sentence imposed after
revocation of supervised release if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). We
first assess the sentence for reasonableness, “follow[ing]
generally the procedural and substantive considerations that we
employ in our review of original sentences, . . . with some
necessary modifications to take into account the unique nature of
supervised release revocation sentences.” Id. at 438-39; see
United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In
applying the ‘plainly unreasonable’ standard, we first determine,
using the instructions given in Gall [v. United States, 128 S. Ct.
586, 597 (2007)], whether a sentence is ‘unreasonable.’”). Only if
a sentence is found procedurally or substantively unreasonable will
we “decide whether the sentence is plainly unreasonable.” Id.; see
Finley, 531 F.3d at 294. Although the district court must consider
the Chapter 7 policy statements and the requirements of 18 U.S.C.A.
§§ 3553(a), 3583 (West 2000 & Supp. 2008), “the [district] court
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ultimately has broad discretion to revoke its previous sentence and
impose a term of imprisonment up to the statutory maximum.”
Crudup, 461 F.3d at 439 (internal quotation marks and citations
omitted).
Larkin does not challenge the procedural aspects of his
sentence, or assert that it exceeds either the Guidelines range or
the statutory maximum. Rather, he argues that the district court’s
remarks about domestic violence indicate that the court failed to
adequately consider the purposes of supervised release in choosing
to impose imprisonment rather than home detention. “In determining
the reasonableness of a sentence, we ‘give due deference to the
district court’s decision.’” Finley, 531 F.3d at 297 (quoting
Gall, 128 S. Ct. at 597). Our review of the record leads us to
conclude that the sentence is not unreasonable.
Accordingly, we affirm Larkin’s sentence. 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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