United States v. Beatty

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4576

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

GARY LEE BEATTY,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:01-cr-00086-F-1)

Submitted: June 23, 2010 Decided: July 6, 2010

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

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Lee Beatty appeals the length of the 24-month

sentence of imprisonment imposed upon him following revocation

of his term of supervised release. We affirm.

We review sentences imposed after the revocation of

supervised release under the deferential “plainly unreasonable”

standard “with regard to those § 3553(a) factors applicable to

supervised release revocation sentences.” United States v.

Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In applying the

standard, we first decide whether the sentence was procedurally

and substantively reasonable, “with some necessary modifications

to take into account the unique nature of supervised release

revocation sentences.” Id. at 438-39. A sentence is

procedurally reasonable if the district court considered the

U.S. Sentencing Guidelines Manual Chapter 7 policy statements 1

and the pertinent factors in 18 U.S.C. § 3553(a). Id. at 440.

A revocation sentence is substantively reasonable if the

district court stated a proper basis for the sentence imposed,

up to the statutory maximum. In addition, “a court’s statement

1
Chapter 7 of the U.S. Sentencing Guidelines Manual
addresses violations of supervised release and probation.
Rather than promulgate guidelines to govern sentences for these
violations, the United States Sentencing Commission chose
instead to issue “policy statements only” to give courts
“greater flexibility” in handling revocation sentences. Ch. 7,
Pt. A, introductory cmts. 1, 3(a).

2
of its reasons for going beyond non-binding policy statements in

imposing a sentence after revoking a defendant’s supervised

release term need not be as specific as has been required when

courts departed from guidelines that were, before [United States

v. ]Booker, [543 U.S. 220 (2005),] considered to be mandatory.”

Id. at 439 (internal quotation marks omitted).

If a sentence is not unreasonable under this standard,

“the sentence should be affirmed.” Id. If, however, the

sentence is either substantively or procedurally unreasonable,

“we must then decide whether the sentence is plainly

unreasonable, relying on the definition of ‘plain’ that we use

in our ‘plain error’ analysis,” that is, “clear, or . . .

“obvious.” Id. (internal quotation marks omitted).

In this case, the district court revoked Beatty’s

supervised release after finding that Beatty committed at least

five supervised release violations, including testing positive

for cocaine and absconding from supervision by failing to

provide his probation officer with an updated address and phone

number. The district court found that Beatty had committed a

Grade C violation 2 and had a criminal history category of VI;

together, these factors yielded an advisory range under the

2
Supervised release violations are graded as A, B, or C
violations. Grade C violations are the least serious. U.S.
Sentencing Guidelines Manual, § 7B1.1, p.s.

3
Chapter 7 policy statements of 8 to 14 months’ imprisonment.

The district court stated that it had considered the Chapter 7

policy statements, and sentenced Beatty to 24 months’

imprisonment. The district court stated that an upward

departure was warranted so that Beatty could receive intensive

substance abuse treatment. The district court also found that

Beatty’s continued illegal drug use posed a threat to society

and that Beatty showed a complete disregard for supervised

release by absconding.

We cannot say that Beatty’s sentence is unreasonable.

It is undisputed that Beatty’s sentence falls within the

applicable statutory maximum. The district court correctly

calculated Beatty’s Guidelines policy statement range of 8 to 14

months imprisonment and stated that it considered the Chapter 7

policy statements.

Moreover, the district court provided a proper basis

for its upward departure, namely Beatty’s need for intensive

substance abuse treatment and his absconding from supervised

release. 3 See Crudup, 461 F.3d at 440 (upholding 36 month

sentence as substantively reasonable in part because of

3
We reject as meritless Beatty’s argument that the sentence
is substantively unreasonable because Beatty may not be eligible
for a specific Bureau of Prisons drug treatment program and
because the court did not adequately consider community-based
drug treatment.

4
“Crudup’s need for substance abuse treatment”); U.S. Sentencing

Guidelines Manual Ch. 7, Pt. A, introductory cmt. 3(b) (“[A]t

revocation the court should sanction primarily the defendant's

breach of trust”). Although the district court’s statement of

reasons was abbreviated, we explained in Crudup that a district

court need not provide as detailed a statement of reasons in

support of a sentence revoking supervised release.

Accordingly, we affirm the district court’s judgment

revoking Beatty’s supervised release and imposing a twenty-four

month prison term. 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