United States v. Christopher Umburger

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER UMBURGER, a/k/a Christopher Umberger,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:00-cr-00204-1)
Submitted: October 21, 2011 Decided: October 27, 2011
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Umburger appeals the district court’s
order revoking his supervised release and sentencing him to
twenty-four months’ imprisonment. Umburger contends that the
evidence was insufficient to support the district court’s
determination that he violated the conditions of his supervised
release and that his sentence was plainly unreasonable.
Furthermore, he claims that he did not receive the effective
assistance of counsel during his revocation hearing. We affirm.
First, Umburger claims the evidence presented at his
revocation hearing was insufficient to support the district
court’s determination that he violated the conditions of his
supervised release. To revoke supervised release, a district
court need only find a violation of a condition of the release
by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)
(2006). We review a district court’s decision to revoke for
abuse of discretion. See United States v. Copley, 978 F.2d 829,
831 (4th Cir. 1992). Because Umburger admitted two alleged
violations and did not contest the third, the district court
clearly acted within its discretion in finding the evidence
sufficient to revoke supervised release.
Umburger is incorrect in his contention that the
district court was required to find that he was actually
convicted of the crime charged as the third violation before
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finding him to be in violation of the relevant condition of his
supervised release. See U.S. Sentencing Guidelines Manual
§ 7B1.1, p.s., cmt. n.1; United States v. Jolibois, 294 F.3d
1110, 1114 (9th Cir. 2002). Similarly, we find no merit in
Umburger’s assertion that his admissions, without more, were
insufficient to support the district court’s findings.
Accordingly, we conclude that the district court did not err in
revoking Umburger’s supervised release.
Umburger next argues that his twenty-four-month
sentence was plainly unreasonable because the district court
failed to properly determine the maximum sentence and advisory
policy statement range, neglected to make an adequate and
individualized determination regarding the relevant 18 U.S.C.
§ 3553(a) (2006) factors, and declined to order an updated
presentence report.
This court will affirm a sentence imposed upon
revocation of supervised release if it is not plainly
unreasonable. United States v. Thompson, 595 F.3d 544, 546 (4th
Cir. 2010). The first step in this review requires a
determination of whether the sentence is unreasonable. United
States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). “This
initial inquiry takes a more deferential appellate posture
concerning issues of fact and the exercise of discretion than
reasonableness review for [G]uidelines sentences.” United
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States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
quotation marks omitted). Only if the sentence is procedurally
or substantively unreasonable does the inquiry proceed to the
second step of the analysis to determine whether the sentence is
plainly unreasonable. Crudup, 461 F.3d at 438-39.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
advisory policy statement range based upon Chapter Seven of the
Sentencing Guidelines and the 18 U.S.C. § 3553(a) (2006) factors
relevant to supervised release revocation. See 18 U.S.C.
§ 3583(e) (2006); Crudup, 461 F.3d at 438-40. A sentence is
substantively reasonable if the district court stated a proper
basis for concluding the defendant should receive the sentence
imposed, up to the statutory maximum. Crudup, 461 F.3d at 440.
“A court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a post-
conviction sentence, but it still must provide a statement of
reasons for the sentence imposed.” Thompson, 595 F.3d at 547
(internal quotation marks omitted).
Because Umburger did not request a sentence outside
the policy statement range, we review his challenge to the
adequacy of the explanation of his sentence for plain error.
Thompson, 595 F.3d at 546; United States v. Lynn, 592 F.3d 572,
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580 (4th Cir. 2010) (finding error not preserved where defendant
failed to seek sentence outside Guidelines range).
Our review of the record indicates that the district
court did not err in determining Umburger’s sentence. First, it
properly calculated his advisory range and maximum sentence.
Additionally, it considered the remarks of both Umburger and his
attorney concerning Umburger’s medical needs, his personal and
family history, the nature of and reasons for his violations,
the varieties of confinement available, and other relevant
§ 3553(a) factors. See 18 U.S.C. § 3583(e). Moreover, there is
no indication that the district court’s decision to not update
Umburger’s presentence report caused it to neglect relevant
information when considering his sentence.
With respect to substantive reasonableness, the
district court imposed a sentence at the statutory maximum and
within Umburger’s policy statement range. Furthermore, it
offered a sufficient basis for the sentence, noting, among other
considerations, the protection of the public and the deterrence
of future criminal conduct. See Thompson, 595 F.3d at 547 (“We
may be hard-pressed to find any explanation for within-range,
revocation sentences insufficient given the amount of deference
we afford district courts when imposing these sentences.”).
Therefore, we find that Umburger’s sentence was not plainly
unreasonable.
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Lastly, we find that Umburger’s claim of ineffective
assistance of counsel is not suitable for review on direct
appeal. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal unless the record
conclusively establishes counsel’s “objectively unreasonable
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims should
be raised in a motion brought pursuant to 28 U.S.C.A. § 2255
(West Supp. 2011) in order to promote sufficient development of
the record. United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010). Because the record before us fails to
conclusively establish Umburger’s allegations regarding his
counsel’s actions and performance, we decline to consider his
ineffective assistance claim in this direct appeal.
Accordingly, we affirm the revocation of Umburger’s
supervised release as well as his sentence. We deny Umburger’s
motion to file a supplemental brief. 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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