United States v. Anderson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUE DAVIES ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:04-cr-00472-NCT-1)
Submitted: September 11, 2008 Decided: September 15, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Harry L. Hobgood, Angela Hewlett
Miller, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hue Davies Anderson appeals the district court’s order
revoking his probation and sentencing him to nine months of
imprisonment. On appeal, counsel filed an Anders1 brief, in which
he states there are no meritorious issues for appeal, but questions
whether the district court erred in imposing a sentence greater
than Anderson’s original Guidelines2 range, without notifying the
parties pursuant to Fed. R. Crim. P. 32(h) of its intent to impose
an upward variant sentence. Anderson was advised of his right to
file a pro se supplemental brief, but has not filed a brief. The
Government declined to file a brief. We affirm.
This court reviews a sentence imposed after revocation of
probation to determine if it is plainly unreasonable. United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). We first
assess the sentence for reasonableness, taking “a more ‘deferential
appellate posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for guidelines sentence.”
Id. (quoting United States v. Crudup, 461 F.3d 433, 438 (4th Cir.
2006)). Although the district court must consider the Chapter 7
policy statements and the requirements of 18 U.S.C.A. §§ 3553(a),
3565 (West 2000 & Supp. 2008), “the sentencing court retains broad
discretion to revoke a defendant’s probation and impose a term of
1
Anders v. California, 386 U.S. 738 (1967).
2
U.S. Sentencing Guidelines Manual (2004).
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imprisonment up to the statutory maximum.” Moulden, 478 F.3d at
656-57.
Anderson 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
imposition of a sentence in excess of the zero to six month
Guidelines range that applied at his original sentencing amounts to
an upward variance for which the court did not give advance notice.
Anderson acknowledges that his argument is foreclosed by the
Supreme Court’s recent decision in Irizarry v. United States, 128
S. Ct. 2198 (2008), but he wishes to preserve the argument for
further appellate review. Our review of the record leads us to
conclude that Anderson’s sentence is not unreasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Anderson’s conviction and sentence, but remand to
the district court for correction of the written judgment to
specify Anderson’s sentence of imprisonment is nine months, as
orally pronounced at the revocation hearing. We deny counsel’s
motion to withdraw. This court requires that counsel inform
Anderson, in writing, of the right to petition the Supreme Court of
the United States for further review. If Anderson 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
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withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Anderson.
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 AND REMANDED
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