United States v. Andre O'Brien

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4404
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE MONTELL O’BRIEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:03-cr-00387-TLW-1)
Submitted: September 25, 2012 Decided: October 10, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Montell O’Brien appeals his eight-month sentence
imposed following revocation of supervised release. Counsel for
O’Brien filed a written brief in this court in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no non-frivolous issues for appeal, but questioning whether
O’Brien’s sentence is plainly unreasonable. O’Brien was informed
of his right to file a pro se supplemental brief but has not
done so, and the Government has elected not to file a brief.
In reviewing a sentence imposed after revocation of
supervised release, this court “takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (internal quotation marks omitted). The court will
affirm a supervised release revocation sentence if it is not
plainly unreasonable. United States v. Thompson, 595 F.3d 544,
546 (4th Cir. 2010). The first step is to determine whether the
sentence is unreasonable. United States v. Crudup, 461 F.3d
433, 438 (4th Cir. 2006). Only if the sentence is procedurally
or substantively unreasonable will the inquiry proceed to the
second step, which is to determine whether the sentence is
plainly unreasonable. Id. at 438-39.
2
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
advisory policy statement range and the § 3553(a) factors
applicable to supervised release revocation. See 18 U.S.C.
§ 3583(e) (West 2000 & Supp. 2011); Thompson, 595 F.3d at 547.
The sentence is substantively reasonable if the district court
stated a proper basis for concluding that the defendant should
receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440.
We conclude that the district court’s sentence is both
procedurally and substantively reasonable, and therefore not
plainly unreasonable. After considering the advisory policy
statement range and the violent nature of O’Brien’s offense, the
district court reasonably imposed a within-Guidelines sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform O’Brien, in writing, of the right
to petition the Supreme Court of the United States for further
review. If O’Brien 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 O’Brien.
3
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