UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMMY CHARLES SHADD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:06-cr-00051-1)
Submitted: April 17, 2008 Decided: April 28, 2008
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Bryne,
George H. Lancaster, Jr., Assistant Federal Public Defenders,
Charleston, West Virginia, for Appellant. Charles T. Miller,
United States Attorney, Karen L. Bleattler, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sammy Charles Shadd appeals the nine-month sentence of
imprisonment imposed by the district court after it revoked his
probation. Finding no error, we affirm.
We review a sentence imposed upon revocation of probation
to determine whether the sentence is plainly unreasonable. United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). In doing so,
we first assess whether the sentence is unreasonable, using a more
deferential standard as to issues of fact and the district court’s
exercise of discretion than that applied in reviewing a guidelines
sentence. Id. If we find the sentence unreasonable, we then
decide whether it is plainly so. Id.
We conclude the nine-month sentence imposed by the
district court is not unreasonable. Shadd was sentenced within the
three to nine month range suggested by the policy statements in
U.S. Sentencing Guidelines Manual § 7B1.4 (2006), and below the
statutory maximum of five years. Shadd admitted he committed four
violations of the terms of his probation, including failing to
contact his probation officer and failing to pay restitution. The
district court properly considered all the relevant factors and
selected a reasonable sentence.
Shadd claims the nine-month sentence was an upward
departure from the zero to six month guideline range applicable at
the time of his conviction, and as a result the district court was
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required to give him advanced notice of his potential sentence.
However, there are no sentencing guidelines for violations of
probation. Moulden, 478 F.3d at 655. The policy statements in
Chapter 7 of the Sentencing Guidelines and the sentencing factors
in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007) are intended to
provide helpful assistance to the sentencing court, but ultimately,
the sentencing court retains broad discretion to revoke a
defendant’s probation and impose a term of imprisonment up to the
statutory maximum. Moulden, 478 F.3d at 657. While the district
court could consider the original sentencing range along with the
other factors, it was in no way bound to that range, and a sentence
outside of the original range is not considered a variance.
Additionally, the advanced notice provisions of Fed. R. Crim. P.
32(h) apply only to the original judgment of conviction and have
not been extended to sentences imposed after revocation of
probation, which are governed instead by Fed. R. Crim. P. 32.1.
Accordingly, we affirm Shadd’s sentence. 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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