UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS OMAR TUCKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:05-cr-00032-GRA-1)
Submitted: August 22, 2013 Decided: August 30, 2013
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas Omar Tucker appeals the twelve-month sentence
imposed upon revocation of his term of supervised release.
Tucker’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious
grounds for appeal, but questioning whether the district court
abused its discretion by revoking Tucker’s supervised release
and imposing a twelve-month sentence. Tucker was advised of his
right to file a pro se supplemental brief, but he did not file
one. We affirm.
A decision to revoke a defendant’s supervised release
is reviewed 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.A. § 3583(e)(3) (West
2013). In this case, Tucker admits that he violated the
conditions of supervision. We find no abuse of discretion in
the district court’s revocation of Tucker’s supervised release.
Turning to Tucker’s sentence, we will not disturb a
sentence imposed after revocation of supervised release that is
within the prescribed statutory range and is not plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 437-39
(4th Cir. 2006). In making this determination, “we follow
2
generally the procedural and substantive considerations” used in
reviewing original sentences. Id. at 438.
A sentence is procedurally reasonable if the district
court has considered the policy statements contained in Chapter
Seven of the Guidelines and the applicable 18 U.S.C. § 3553(a)
(2006) factors, id. at 440, and has adequately explained the
sentence chosen, though it need not explain the sentence in as
much detail as when imposing the original sentence. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A
sentence is substantively reasonable if the district court
states a proper basis for its imposition of a sentence up to the
statutory maximum. Crudup, 461 F.3d at 440. If, based on this
review, the appeals court decides that the sentence is not
unreasonable, it should affirm. Id. at 439.
In the initial inquiry, we take a more deferential
posture concerning issues of fact and the exercise of discretion
than when we apply the reasonableness review to post-conviction
Guidelines sentences. United States v. Moulden, 478 F.3d 652,
656 (4th Cir. 2007). Only if we find the sentence unreasonable
must we decide whether it is “plainly” so. Id. at 657.
Although counsel questions whether there is any error
rendering Tucker’s sentence plainly unreasonable, he identifies
no such error. The district court properly calculated the
Policy Statement range and sentenced Tucker to twelve months’
3
imprisonment, a sentence within the Policy Statement range and
below the statutory maximum. 18 U.S.C.A. § 3583(e)(3); U.S.
Sentencing Guidelines Manual § 7B1.4(a) (2004). Our review of
the record leads us to conclude that Tucker’s sentence is not
plainly 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. This court requires that counsel
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client 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 of the motion was served
on his client. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
4