United States v. Smith

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5123

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

RODRIGUEZ CHERONE SMITH,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:03-cr-00162-FDW-2)

Submitted: July 9, 2010 Decided: July 20, 2010

Before MOTZ, GREGORY, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Ross H. Richardson, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Edward R. Ryan, Assistant United
States Attorneys, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Rodriguez Cherone Smith appeals the district court’s

judgment revoking his supervised release and sentencing him to

nine months in prison and two years of supervised release.

Smith’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’s revocation sentence is

plainly unreasonable. Smith was notified of his right to file a

pro se supplemental brief but has not done so. 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),

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the court need not robotically tick through every subsection,

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).

We have reviewed the record and conclude that Smith’s

sentence is within the prescribed statutory range and not

plainly unreasonable. At his revocation hearing, Smith admitted

all four violations alleged by the probation officer. The

district court properly calculated that Smith’s policy statement

range under U.S. Sentencing Guidelines Manual § 7B1.4(a) was

five to eleven months based on Grade C violations and a criminal

history category III, and the court considered the range along

with applicable statutory factors in imposing its sentence.

Although Smith requested a prison sentence of time served or the

low end of the guideline range, and that no further supervised

release term be imposed, the court reasonably determined a nine-

month sentence followed by two years of supervised release was

appropriate based on Smith’s repeated violations and his need

for rehabilitation and intense supervision.

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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