United States v. Anthony McClain

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4331
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY MCCLAIN, a/k/a Ice, a/k/a New York,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Cameron McGowan Currie, District
Judge. (5:96-cr-00179-CMC-1)
Submitted: September 18, 2012 Decided: October 24, 2012
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John H. Hare, Assistant Federal Public Defender, Kimberly H.
Albro, Research and Writing Specialist, Columbia, South
Carolina, for Appellant. Nancy Chastain Wicker, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony McClain appeals the district court’s judgment
revoking his supervised release and sentencing him to twenty-
four months’ imprisonment. McClain’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal. McClain has
filed a pro se supplemental brief raising several issues. The
Government did not file a brief. We affirm.
We review a district court’s judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion. United States v. Copley, 978 F.2d 829, 831 (4th
Cir. 1992). To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2006).
McClain had no objections to the amended violations report.
According to the report, while on supervision, McClain tested
positive for a controlled substance four times, pled guilty to
assault and battery in the first degree and admitted that he
exchanged crack cocaine for sex. We conclude that it was shown
by a preponderance of the evidence that McClain violated his
supervised release. Accordingly, we find that the district
court did not abuse its discretion by revoking supervised
release.
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We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439–40 (4th Cir. 2006). We first consider whether
the sentence is procedurally or substantively unreasonable. Id.
at 438. In this initial inquiry, we take a more deferential
posture concerning issues of fact and the exercise of discretion
than reasonableness review for guidelines sentences. United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). Only if
we find the sentence procedurally or substantively unreasonable
must we decide whether it is “plainly” so. Id. at 657.
While a district court must consider the Chapter Seven
policy statements and the statutory factors applicable to
revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006),
the court need not robotically tick through every subsection,
and ultimately, the court has broad discretion to revoke the
previous sentence and impose a term of imprisonment up to the
statutory maximum. Id. at 656–57. Moreover, while a district
court must provide a statement of reasons for the sentence, the
court need not be as detailed or specific when imposing a
revocation sentence as when imposing a post-conviction sentence.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
We have reviewed the record and conclude that
McClain’s sentence is within the prescribed range and is not
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plainly unreasonable. At the revocation hearing, the court
properly considered the Guidelines and applicable statutory
factors in imposing its sentence, including McClain’s
noncompliance and his very serious criminal record.
McClain argues that exchanging drugs for sex is not a
distribution offense. This claim is without merit.
Distribution includes any actual transfer of a controlled
substance. United States v. Washington, 41 F.3d 917, 919 (4th
Cir. 1994) (distribution includes sharing drugs with friends).
In McClain’s instance, he did more than share the crack cocaine;
he gave it to a prostitute in exchange for sex. Because
distribution of any amount of crack cocaine is a felony offense,
it was properly scored a Grade A violation. See 21 U.S.C.
§ 841(b)(1)(C); U.S. Sentencing Guidelines Manual § 7B1.1. *
In accordance with Anders, we have reviewed the entire
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 his client, in writing,
of his right to petition the Supreme Court of the United States
*
McClain’s claim that his assault and battery conviction
was not a Grade A violation is moot. Assuming he is correct, he
still faced a Grade A violation by virtue of the drug
distribution charge. Thus, because of the drug distribution
violation, his Chapter Seven Guidelines sentence was properly
determined to be twenty-four months.
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for further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court at that time for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. Finally, 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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