UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4781
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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