UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLIE VAYSHONE GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:02-cr-00163-FDW-1)
Submitted: May 26, 2010 Decided: June 17, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charlie Vayshone Green appeals the district court’s
order revoking his term of supervised release and imposing a
sentence of thirty-three and one-half months of imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in his view,
there are no meritorious issues for appeal, but questioning, as
requested by Green, whether the district court proceeded
improperly with the supervised release revocation hearing after
the state charges had been dismissed, whether the district court
abused its discretion in concluding that Green possessed crack
cocaine without a laboratory report confirming the identity of
the substance, whether the district court abused its discretion
in concluding that Green violated supervised release by failing
to return to the reentry center, whether the district court
abused its discretion in failing to give advance notice that it
was contemplating a sentence above the Guidelines range, and
whether the district court abused its discretion in sentencing
Green to a term of imprisonment greater than the top of the
Guidelines range. In his pro se supplemental briefs, Green
essentially repeats the issues raised by counsel. The
Government declined to file a brief. We affirm.
This court reviews a district court’s order imposing a
sentence after revocation of supervised release for abuse of
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discretion. United States v. Davis, 53 F.3d 638, 642-43 (4th
Cir. 1995). The district court abuses its discretion when it
fails or refuses to exercise its discretion or when its exercise
of discretion is flawed by an erroneous legal or factual
premise. James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
In a revocation proceeding, “findings of fact are made under a
preponderance-of-the-evidence, rather than reasonable doubt,
standard, the traditional rules of evidence are inapplicable,
and the full panoply of constitutional protections afforded a
criminal defendant is not available.” United States v.
Armstrong, 187 F.3d 392, 394 (4th Cir. 1999) (internal quotation
marks and citations omitted). A defendant challenging the
sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In
determining whether the evidence in the record is substantial,
this court views the evidence in the light most favorable to the
government. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). Green’s claim that the district court erred in
proceeding with the revocation hearing after the underlying
state charges were dismissed is without merit. Further, our
review of the record convinces us that the court correctly
concluded that Green committed the alleged violations, and
properly revoked his supervised release.
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If a defendant first presents his sentencing
assignments of error to the district court or otherwise argues
for a sentence below the advisory policy statement sentencing
range calculated by the district court, this court reviews a
sentence imposed after revocation of supervised release to
determine whether it is “plainly unreasonable.” United
States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010); United
States v. Crudup, 461 F.3d 433, 437-40 (4th Cir. 2006). Green
preserved his claims by asserting that he was not given adequate
notice of the district court’s intent to upwardly depart from
the Guidelines range, and by requesting a sentence within the
advisory Guidelines range of eighteen to twenty-four months,
which was less than the sentence imposed by the district court.
The first step in the analysis is to determine whether
the sentence was unreasonable. Crudup, 461 F.3d at 438. In
conducting this review, the court follows generally the
procedural and substantive considerations employed in reviewing
original sentences. Id. at 438-39; see United States v. Finley,
531 F.3d 288, 294 (4th Cir. 2008) (“In applying the ‘plainly
unreasonable’ standard, we first determine, using the
instructions given in Gall [v. United States, 552 U.S. 38, 51
(2007)], whether a sentence is ‘unreasonable.’”).
The district court commits procedural error if, for
example, it improperly calculates the advisory policy statement
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sentencing range. Gall, 552 U.S. at 51. In assessing whether
the district court properly applied the Guidelines, this court
reviews the district court's factual findings for clear error
and its legal conclusions de novo. United States v. Osborne,
514 F.3d 377, 387 (4th Cir. 2008). For mixed questions of law
and fact, the court applies a due deference standard of review.
Id. “Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence[,]” procedural error also
occurs when the district court fails to adequately explain the
chosen sentence with an “individualized assessment.” United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal
quotation marks omitted). “A court need not be as detailed or
specific when imposing a revocation sentence as it must be when
imposing a post-conviction sentence, but it still must provide a
statement of reasons for the sentence imposed.” Thompson, 595
F.3d at 547 (internal citation and quotation marks omitted).
“If, and only if, [the court] find[s] the sentence procedurally
reasonable can [it] consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.”
Carter, 564 F.3d at 328 (internal quotation marks and citations
omitted).
If the court concludes that a sentence is reasonable,
it should affirm the sentence. Crudup, 461 F.3d at 439. If a
sentence is found procedurally or substantively unreasonable,
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however, this court must “decide whether the sentence is plainly
unreasonable.” Id.; see Finley, 531 F.3d at 294. Although the
district court must consider the Chapter 7 policy statements and
the relevant requirements of 18 U.S.C.A. §§ 3553(a), 3583 (West
2000 & Supp. 2009), “the [district] court ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum.” Crudup, 461 F.3d at
439 (internal quotation marks and citations omitted). Our
review of the record leads us to conclude that the district
court correctly concluded that advance notice of its
consideration of a sentence above the Guidelines range was not
required. The court adequately explained its sentence, and
tailored that explanation to Green’s individual circumstances.
The sentence imposed by the district court was reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. We deny
Green’s motion to transfer. This court requires that counsel
inform Green, in writing, of the right to petition the Supreme
Court of the United States for further review. If Green
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 Green.
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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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