UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4990
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERVIN RODDELL HUGHES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (2:02-cr-00012-BO-1)
Argued: September 23, 2010 Decided: October 6, 2010
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE 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, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ervin Roddell Hughes appeals the twenty-four month sentence
imposed on him for violation of his term of supervised release.
Hughes argues that this sentence is plainly unreasonable. We
affirm.
In 2003, Hughes pled guilty to possession of a firearm by a
felon, and received a sentence of 92 months imprisonment to be
followed by 36 months of supervised release. On June 30, 2009,
Hughes completed his term of imprisonment. Two-and-a-half
months later, on September 17, 2009, a probation officer
petitioned the court for revocation of Hughes’ term of
supervised release. The probation officer explained that in
violation of the terms of release Hughes had: (1) tested
positive for marijuana on three occasions; (2) failed to report
for random drug testing on two occasions; (3) engaged in
criminal conduct, including reckless driving, resisting a public
officer, and hit and run leaving the scene of property damage;
and (4) failed to work regularly at a lawful occupation. The
probation officer completed a worksheet that weighed the
violations according to the Sentencing Commission’s Policy
Statements; this produced an advisory imprisonment range of 8-14
months.
At the revocation hearing, Hughes admitted violations (1),
(2), and (4), and did not contest violation (3). Hughes’
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attorney suggested that the police officer involved in that
violation “summariz[e] the evidence” as to it. According to the
uncontroverted statement of the officer, after he activated his
blue lights and initiated a traffic stop of Hughes’ car at
3:00 a.m. on August 29, 2009, Hughes accelerated away from and
attempted to elude the officer, proceeding to swerve into a
ditch. Hughes then jumped out of the car and ran into the
woods. The police set up a perimeter and sent out a search team
and the officer found Hughes hiding in a creek bed.
Hughes told the court that he panicked because he had been
robbed earlier that night and feared being found in violation of
his conditions of supervised release. After considering Hughes’
explanation, the district court concluded that Hughes had
violated his term of supervised release. The court then asked
defense counsel if there was “anything [he] wanted to say.”
Defense counsel responded that Hughes had secured some part-time
work, had paid off part of a ticket, and knew that he needed
treatment for his drug problem. Neither Hughes nor his counsel
requested a sentence within the guidelines range, sought a
sentence that departed from the guidelines range, or even
mentioned the guidelines or the § 3553 factors.
After the Government counsel reminded the court that
Hughes’ original offense also involved fleeing an abandoned
vehicle, the district court sentenced Hughes to the statutory
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maximum -- twenty-four months imprisonment. The court explained
that Hughes’ violation involved a “highly dangerous situation”
and created a “bad scene.” The record reflects no objection to
that sentence or even comment on it from Hughes or his counsel.
“[R]evocation sentences should be reviewed to determine
whether they are ‘plainly unreasonable’ 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).
Moreover, although neither Hughes nor the Government
addressed the issue in their briefs, the record mandates that in
determining whether the challenged sentence in this case is
“plainly unreasonable,” we apply the rigorous plain error
standard of review. See United States v. Lynn, 592 F.3d 572,
577-80 (4th Cir. 2010). Preservation of an objection to a
sentence sufficient to evade plain error review requires a
defendant to make an argument drawn from the § 3553 factors that
“sufficiently alerts the district court of its responsibility to
render an individualized explanation” of the sentence. Id. at
578. Neither Hughes nor his counsel made such an argument here.
The district court expressly gave Hughes and his counsel an
opportunity to speak prior to imposition of the sentence.
Indeed, after discerning the facts of Hughes’ violation, the
court specifically asked defense counsel if there was “anything
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you want to say.” In response, defense counsel did not request
a guidelines (or lower) sentence or even mention the guidelines
or § 3553. Thus, Hughes did not preserve his present argument
that the sentence imposed is plainly unreasonable.
Given the rigorous plain error standard of review, see
United States v. Olano, 507 U.S. 725, 732 (1993) (setting forth
plain error standard), we must affirm. Hughes has failed to
demonstrate that the district court plainly erred by imposing a
plainly unreasonable revocation sentence.
AFFIRMED
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