United States v. Bowden

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4781

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOSEPH DAVID BOWDEN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:99-cr-317-1)

Submitted: June 29, 2009 Decided: July 13, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North
Carolina, for Appellant. Frank Joseph Chut, Jr., Angela Hewlett
Miller, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Joseph Bowden appeals from the district court’s

judgment revoking his supervised release and imposing a ten-

month sentence. On appeal, Bowden’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

there are no meritorious issues for appeal, but questioning the

decision to revoke Bowden’s supervised release and the

reasonableness of the sentence imposed. Although informed of

his right to do so, Bowden has not filed a pro se supplemental

brief. After a thorough review of the record, we affirm.

We review the district court’s revocation of

supervised release for abuse of discretion. United States v.

Pregent, 190 F.3d 279, 282 (4th Cir. 1999). The district court

need only find a violation of a condition of supervised release

by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)

(2006). We review for clear error factual determinations

underlying the conclusion that a violation occurred. United

States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003); United

States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996). After

reviewing the record, we find the district court did not abuse

its discretion in determining by a preponderance of the evidence

that Bowden violated the terms of his supervised release.

We will affirm a sentence imposed after revocation of

supervised release if it is within the prescribed statutory

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range and not plainly unreasonable. United States v. Crudup,

461 F.3d 433, 439-40 (4th Cir. 2006). We first assesses the

sentence for unreasonableness, “follow[ing] generally the

procedural and substantive considerations that we employ in our

review of original sentences, . . . with some necessary

modifications to take into account the unique nature of

supervised release revocation sentences.” Id. at 438-39. If we

conclude that a sentence is not unreasonable, we will affirm the

sentence. Id. at 439. Only if a sentence is found procedurally

or substantively unreasonable will we “decide whether the

sentence is plainly unreasonable.” Id.

A supervised release revocation sentence is

procedurally reasonable if the district court considered the

Chapter Seven advisory policy statement range and the 18 U.S.C.

§ 3553(a) (2006) factors that it is permitted to consider in a

supervised release revocation case. See 18 U.S.C. § 3583(e);

Crudup, 461 F.3d at 440. Such 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 sentence

is plainly unreasonable if it is clearly or obviously

unreasonable. Id. at 439.

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While the district court mentioned the § 3553(a)

factors and noted Bowden’s previous criminal history of credit

card fraud and his continuing violations of the terms of his

probation/release, it did not provide any further explanation

for why it imposed a ten-month sentence or what sentencing

factors it considered. Thus, the sentence is at least arguably

both substantively and procedurally unreasonable. However, we

easily conclude that Bowden’s sentence was not “plainly

unreasonable” because the sentence was within the recommended

policy statement range and under the statutory maximum.

Moreover, the record does not contain any basis on which to

conclude that the imposed sentence is clearly or obviously

unreasonable.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Bowden, in writing, of

his right to petition the Supreme Court of the United States for

further review. If Bowden 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 withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Bowden. 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