UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4857
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLARENCE BURGESS,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:05-cr-00142-1)
Submitted: April 22, 2009 Decided: May 15, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Karen B. Schommer, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Burgess pled guilty to one count of
conspiracy to possess, manufacture, pass, and utter false
instruments, in violation of 18 U.S.C.A. § 371 (West 2004), and
was sentenced in November 2005 to ten months’ imprisonment
followed by three years of supervised release. In August 2008,
the district court revoked Burgess’ supervised release and
sentenced him to twenty-four months’ imprisonment. On appeal,
Burgess contends that his twenty-four month prison sentence is
plainly unreasonable because it does not further the purposes of
supervised release. Finding no error, we affirm.
A sentence imposed after revocation of supervised
release will be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). In
determining whether a sentence is “plainly unreasonable,” this
court first assesses whether the sentence is procedurally and
substantively reasonable. Id. at 438. In evaluating the
reasonableness of a revocation sentence, this court views issues
of fact and the district court's exercise of discretion with
deference. Id. at 439. A district court has broad discretion
to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum. Id. Moreover, a
district court's statement of reasons for going beyond the
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Guidelines’ non-binding policy statement “in imposing a sentence
after revoking a defendant's supervised release need not be as
specific as has been required when courts departed from
guidelines that were, before Booker, considered to be
mandatory.” Id. at 439 (quoting United States v. Lewis, 424
F.3d 239, 245 (2d Cir. 2005)).
A sentence is procedurally reasonable if the district
court considered the Sentencing Guidelines’ Chapter Seven policy
statements and the pertinent factors in 18 U.S.C. § 3553(a)
(2006). See Crudup, 461 F.3d at 440. A sentence is
substantively reasonable if the district court stated a proper
basis for concluding that the defendant should receive the
sentence imposed, up to the statutory maximum. See id. Only if
a sentence is found procedurally or substantively unreasonable
will this court “then decide whether the sentence is plainly
unreasonable.” Id. at 439.
In this case, it is undisputed that Burgess’ twenty-
four month prison sentence falls within the applicable statutory
maximum sentence of two years’ imprisonment. See 18 U.S.C.A.
§§ 371, 3583(e)(3), 3559(a) (West 2006). Additionally, Burgess
does not dispute that the district court properly calculated and
considered the Guidelines’ policy statement range of three to
nine months’ imprisonment. Further, Burgess does not assert
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that the district court failed to consider any pertinent
sentencing factor under § 3553(a).
Moreover, the district court sufficiently stated a
proper basis for its decision to sentence Burgess above the
range recommended by the Guidelines. The district court’s
comments at the revocation hearing indicate that it imposed a
sentence above the advisory policy statement range as a result
of Burgess’ repeated breaches of trust following instances of
leniency. See USSG Ch. 7, Pt. A, intro cmt. 3(b) (“[A]t
revocation the court should sanction primarily the defendant’s
breach of trust.”); see also Crudup, 461 F.3d at 440 (affirming
the imposition of the statutory maximum sentence when the
appellant had repeatedly violated numerous conditions of his
supervised release). Based on the broad discretion that a
district court has to revoke a term of supervised release and
impose a prison term up to and including the statutory maximum,
Burgess’ sentence is not unreasonable. Therefore, we find that
Burgess’ sentence is not plainly unreasonable. See Crudup, 461
F.3d at 438-39.
Accordingly, we affirm the district court’s judgment
revoking Burgess’ supervised release and imposing a twenty-four
month prison term. 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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