United States v. Wallace

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY DURAND WALLACE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00147-BR-2)
Submitted: January 31, 2011 Decided: February 17, 2011
Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Durand Wallace appeals the twenty-four month
sentence imposed on him for violation of the terms and
conditions of his supervised release. Wallace argues that his
revocation sentence is plainly unreasonable. We affirm.
In 2006, Wallace pled guilty to conspiracy, wire
fraud, aggravated identity theft, and aiding and abetting in
these crimes in violation of 18 U.S.C. §§ 2, 371, 1343, and
1028A (2006). The district court sentenced him to thirty-four
months’ imprisonment followed by three years’ supervised
release. Wallace began his term of supervision on October 8,
2008. A year later, a probation officer petitioned the district
court for revocation of Wallace’s term of supervised release.
In that petition, and in two amended petitions filed in
subsequent months, the probation officer explained Wallace had,
in violation of the terms of his supervised release: (1) been
arrested in January 2009 for breaking into a car, stealing a
credit card, and — within forty minutes — making $1,000 worth of
unauthorized purchases; (2) absconded from supervision; and
(3) tested positive for an illegal substance.
Wallace did not dispute these allegations at his
revocation hearing, nor did he ask for a below-guidelines
sentence. After hearing argument from the parties and allowing
Wallace to address the court, the district court imposed the
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twenty-four month statutory maximum revocation sentence,
explaining as it did so that it had considered the policy
statements pertaining to revocation sentences in chapter seven
of the United States Sentencing Guidelines (2009).
Because Wallace did not request a sentence outside the
policy statement range we must review his challenge to the
adequacy of the explanation for his sentence for plain error.
United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010)
(finding error not preserved where defendant failed to seek
sentence outside guidelines range). “To establish plain error,
[Wallace] must show that an error occurred, that the error was
plain, and that the error affected his substantial rights.”
United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
Even if Wallace satisfies these requirements, “correction of the
error remains within [the court’s] discretion, which [the court]
should not exercise . . . unless the error seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
omitted) (third alteration in original).
In the sentencing context, an error affects
substantial rights if the defendant can show that the sentence
imposed “was longer than that to which he would otherwise be
subject.” United States v. Washington, 404 F.3d 834, 849 (4th
Cir. 2005) (internal quotation marks and citation omitted); see
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also United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009)
(“In the sentencing context, an error was prejudicial only if
there is a reasonable probability that the defendant would have
received a lighter sentence but for the error.”). We conclude
Wallace cannot meet this rigorous standard on this record.
Wallace’s return to serious criminal conduct almost
immediately following his release from custody; failure to
respond to the supervision of his probation officer; use of
illegal substances; and robust criminal history all militate
against a determination that his substantive rights were
affected by any inadequacy in the district court’s explanation.
Finally, there is no evidence supporting Wallace’s assertion
that the district court ignored his claim that his return to
criminal behavior, drug use, and flight was “triggered” by his
mother’s illness and death. Instead, the court implicitly
rejected that argument and apparently concluded that Wallace’s
personal circumstances, while tragic, did not warrant a lower
revocation sentence.
Accordingly, we conclude Wallace’s challenge to his
revocation sentence cannot withstand plain error review, as he
cannot establish that any error by the district court affected
his substantial rights. We therefore affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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