United States v. McKayhan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4380
DARRICK KENT MCKAYHAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CR-92-2-1)
Submitted: January 30, 2004
Decided: April 7, 2004
Before LUTTIG and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Edwin C. Walker,
First Assistant Federal Public Defender, G. Alan DuBois, Assistant
Federal Public Defender, Raleigh, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
2 UNITED STATES v. MCKAYHAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In 1992, Darrick K. McKayhan pled guilty to possession with
intent to distribute cocaine base, 21 U.S.C. § 841 (2000), and posses-
sion of a firearm during and in relation to a drug trafficking crime,
18 U.S.C. § 924(c) (2000). He received a 78-month sentence and a
consecutive 60-month sentence, respectively. The court also imposed
a five-year term of supervised release. McKayhan was released on
January 2, 2002. In April 2003, his probation officer filed a motion
for revocation of McKayhan’s supervised release. After holding a
hearing, of the seven alleged violations, the district court found that
McKayhan had violated six conditions of his supervised release. Stat-
ing that it had considered the Chapter Seven policy statements and the
recommended guideline range of five to eleven months, the court
revoked McKayhan’s supervised release and imposed a 24-month
sentence. We affirm the sentence.
On appeal, McKayhan argues that the sentence imposed was unrea-
sonable under the facts of his case and in light of the policy state-
ments set forth in U.S. Sentencing Guidelines Manual § 7B1.4 (2002).
He further maintains that the court failed to consider the relevant stat-
utory factors under 18 U.S.C. § 3553(a) (2000) and to set forth its rea-
soning.
We review an order imposing a sentence after revocation of super-
vised release for abuse of discretion. United States v. Davis, 53 F.3d
638, 642-43 (4th Cir. 1995). Chapter Seven of the U.S. Sentencing
Guidelines Manual sets forth policy statements offering recom-
mended sentencing ranges for revocation of probation and supervised
release. Chapter Seven is advisory and non-binding. Id. at 642. How-
ever, the court should consider the policy statements before imposing
sentence. Id. If the court has considered the relevant factors and the
applicable policy statements, the court has the discretion to impose a
UNITED STATES v. MCKAYHAN 3
sentence outside the ranges set forth in the Guidelines. Id. Because
the district court was presented with and explicitly considered the
suggested sentencing range of USSG § 7B1.4, and McKayhan’s sen-
tence does not exceed the statutory maximum under 18 U.S.C. § 3583(2000), we find no abuse of discretion in McKayhan’s sentence.
To the extent that McKayhan alleges that the court failed to con-
sider the sentencing factors set out in 18 U.S.C. § 3553(a), and to
explain its reasoning, this claim is reviewed for plain error as he did
not raise it below. Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 733-37 (1993). Based on our review of the hearing tran-
script, we find that consideration of the sentencing factors was
implicit in the court’s imposition of the sentence. Nothing in the stat-
ute or in the Federal Rules of Criminal Procedure requires the court
to state on the record that it considered each of the factors contained
in 18 U.S.C. § 3553(a). Moreover, although the Sixth Circuit has held
that a district court should at least provide some explanation for
imposing a sentence which exceeds the range recommended by USSG
§ 7B1.4,* this court has never imposed such a requirement. Davis, 53
F.3d at 642 (stating "[a] court need not engage in ritualistic incanta-
tion in order to establish its consideration of a legal issue"); see also
United States v. Velasquez, 136 F.3d 921, 924 (2d Cir. 1998) (observ-
ing that district courts are not obligated "to make specific findings
with respect to any or all of the factors listed in . . . § 3553(a)").
Accordingly, we affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED
*United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999).