UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4626
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JERRY HOLMES,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:02-cr-00878-GRA-2)
Submitted: May 26, 2010 Decided: July 21, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Jerry Holmes appeals the district court’s judgment
revoking his supervised release and sentencing him to thirty-six
months in prison and five years of supervised release less the
revocation term. Holmes’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting, in her
opinion, there are no meritorious grounds for appeal but raising
the issue of whether the district court abused its discretion by
revoking Holmes’s supervised release and sentencing him to serve
thirty-six months in prison and five years of supervised
release, less the revocation term. Holmes has filed a pro se
supplemental brief raising additional issues. We affirm.
We review a district court’s judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion. United States v. Copley, 978 F.2d 829, 831 (4th
Cir. 1992). To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2006).
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
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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,
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).
Holmes began his first period of supervised release on
December 21, 2007. On August 21, 2008, the probation officer
petitioned to revoke Holmes’s supervised release alleging he had
violated his release conditions. At his revocation hearing on
October 23, 2008, Holmes admitted the violation and the district
court sentenced him at the low end of his policy statement range
to five months in prison and four years of supervised release.
Holmes began his second term of supervised release on February
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11, 2009. Shortly thereafter, on March 24, 2009, the probation
officer petitioned to revoke Holmes’s supervised release,
alleging he had again violated his conditions of release.
According to the probation officer, Holmes had repeatedly failed
to report to the probation office as directed and refused to
provide current address and contact information.
As noted in the supervised release violation report,
the district court was authorized, upon finding a violation by a
preponderance of the evidence, to revoke the previous term of
supervised release and impose a prison term of up to three years
followed by a new term of supervised release of up to five years
less the revocation term. See U.S.C. § 3583(e)(3), (h) (2006).
Based on Grade C violations and a criminal history category III,
Holmes’s advisory policy statement range was five to eleven
months in prison. See U.S. Sentencing Guidelines Manual
§ 7B1.4(a). Neither party objected to the violation report.
At his revocation hearing, Holmes admitted the
violations, and the district court confirmed this was Holmes’s
second time appearing before the court on supervised release
violations. Holmes’s attorney conceded he had “not done well on
supervision,” and requested that the court revoke supervision
completely and sentence Holmes at the low end of his guideline
range. Holmes explained that he had “made a choice” to stay out
of town working rather than report to the probation office as
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directed. The district court explained that Holmes had “made
the wrong choice” and this was his “second time up here”; and
the court revoked the previous term of supervised release and
sentenced Holmes to a total of three years in prison and five
years of supervised release less the revocation term.
On appeal, Holmes’s attorney concedes that Holmes’s
sentence is within the prescribed statutory range, and that
“[g]iven the facts of the case and the nature of Holmes’s
conduct while on supervised release as they appear in the
record, it does not appear that the district court abused its
discretion in revoking his supervised release and sentencing him
as was done here.” In his pro se supplemental brief, Holmes
contends that the district court abused its discretion because
the court was required to sentence him within his guideline
range. Moreover, he contends that the court had no authority to
impose a new term of supervised release; the court erred in
failing to give reasons for his “upward departure”; and he
should have received credit for his prior time on supervised
release and the prison time served on the first violation.
We find these arguments without merit, and we conclude
that the district court did not abuse its discretion by revoking
Holmes’s supervised release, and his sentence is both within the
prescribed statutory range and reasonable. While the district
court was required to consider the policy statement range, the
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court had broad discretion to sentence Holmes up to the
statutory maximum. As twice noted by the court, Holmes was a
repeat violator. Although his offenses were only a Grade C, he
had a pattern of refusing to conform to the requirements of
supervision, and it was not unreasonable for the court to take
into account not only the severity of the violations but also
their number. See Moulden, 478 F.3d at 658. Moreover, Holmes
conceded he made a “choice” to ignore his probation officer’s
repeated instructions, indicating his violations were not only
repeated but willful. As the guideline sentence Holmes received
the previous time he appeared before the district court on
supervised release violations did not deter him from repeating
the violations, it was reasonable for the court to reject his
request for the same sentence. Finally, the court adequately
explained its decision was based on Holmes making the wrong
choice and appearing before the court again on violations.
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 her 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
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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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