UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4714
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHAWN DEMETRIUS PHILLIPS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:02-cr-00004-DCN-1)
Submitted: May 19, 2010 Decided: June 8, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Michael Rhett DeHart, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Demetrius Phillips appeals his forty-eight month
prison sentence imposed in the district court’s judgment
revoking his supervised release. Phillips’s attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in his opinion, there are no meritorious grounds for
appeal but raising the issue of whether the district court erred
in sentencing Phillips within the range provided by U.S.
Sentencing Guidelines Manual § 7B1.4(a)(2). We affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). We first consider whether
the sentence is procedurally or substantively unreasonable. Id.
at 438. In this initial inquiry, we take a more deferential
posture concerning issues of fact and the exercise of discretion
than reasonableness review for guidelines sentences. United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). Only if
we find the sentence procedurally or substantively unreasonable
must we decide whether it is “plainly” so. Id. at 657.
While a district court must consider the Chapter Seven
policy statements and the statutory factors applicable to
revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006),
the court need not robotically tick through every subsection,
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and ultimately, the court has broad discretion to revoke the
previous sentence and impose a term of imprisonment up to the
statutory maximum. Id. at 656-57. Moreover, while a district
court must provide a statement of reasons for the sentence, the
court need not be as detailed or specific when imposing a
revocation sentence as when imposing a post-conviction sentence.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
During his supervised release term, Phillips was
arrested for and convicted in state court of murder, armed
robbery, and criminal conspiracy, and he was sentenced to forty
years in prison. Since the new criminal conduct was a violation
of his supervised release conditions, the probation officer
petitioned for revocation and recommended a sentence at the top
of the policy statement range due to the nature of the offense.
At his revocation hearing, Phillips admitted the
violation. There were no objections to the supervised release
violation report, and the district court adopted its findings
and calculations. Phillips was subject to a five-year prison
term and eight years of supervised release less any revocation
term pursuant to 18 U.S.C. § 3583(e)(3), (h) (2006). Based on a
Grade A violation and criminal history category V, Phillips’s
policy statement range was forty-six to fifty-seven months in
prison under USSG § 7B1.4(a)(2), and his revocation term would
run consecutive to his state sentence under USSG § 7B1.3(f).
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The Government requested a sentence within the policy
statement range. Phillips requested a sentence below that range
and that the district court consider a non-consecutive sentence.
Phillips argued that because he would likely serve eighty-five
percent of his forty-year state sentence and would be sixty-six
years old when released, he was already being punished
appropriately for his crime. The district court questioned
whether the state sentence was final, and Phillips acknowledged
it was being reviewed in post-conviction proceedings.
The district court sentenced Phillips at the lower end
of his policy statement range to forty-eight months in prison
consecutive to his state sentence but with no supervised release
to follow. In rejecting his request for a concurrent sentence
below his policy statement range, the district court indicated a
willingness to reconsider the request if there were a final
state sentence, but the court determined a within-policy range
consecutive sentence was appropriate given that “it doesn’t get
any worse than a conviction for murder and armed robbery.”
On appeal, Phillips’s attorney concludes it cannot be
validly argued that the district court erred or abused its
discretion in sentencing Phillips within his properly calculated
policy statement range. We agree and find the sentence is both
within the prescribed statutory range and reasonable.
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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 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 thereof was served on the client.
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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