UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CECIL DEAN WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (2:06-cr-00023-D-1)
Submitted: August 31, 2010 Decided: October 22, 2010
Before MOTZ, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Cecil Dean White appeals from his twenty-four month
sentence imposed pursuant to the revocation of his supervised
release. On appeal, White asserts that his sentence is
procedurally and substantively plainly unreasonable because the
district court failed to consider the mitigating circumstances,
gave excessive weight to the exaggerated severity of the
violations, and failed to provide sufficiently compelling
support for a major variance. We affirm.
A sentence imposed after revocation of supervised
release should be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In
making this determination, we first consider whether the
sentence is unreasonable. Id. at 438. “This initial inquiry
takes a more deferential appellate posture concerning issues of
fact and the exercise of discretion than reasonableness review
for guideline sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007). In making our review, we “follow
generally the procedural and substantive considerations that
[are] employ[ed] in [the] review of original sentences, . . .
with some necessary modifications to take into account the
unique nature of supervised release revocation sentences.”
Crudup, 461 F.3d at 438-39.
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A sentence imposed upon revocation of release is
procedurally reasonable if the district court considered the
Chapter Seven policy statements and the 18 U.S.C. § 3553(a)
(2006) factors that it is permitted to consider. See 18 U.S.C.
§ 3583(e); Crudup, 461 F.3d at 438-40. A sentence imposed upon
revocation of release is substantively reasonable if the
district court stated a proper basis for concluding that the
defendant should receive the sentence imposed, up to the
statutory maximum. Crudup, 461 F.3d at 440. We will affirm if
the sentence is not unreasonable. Id. at 439. Only if a
sentence is found procedurally or substantively unreasonable
will we “decide whether the sentence is plainly unreasonable.”
Id. “[T]he court ultimately has broad discretion to revoke its
previous sentence and impose a term of imprisonment up to the
statutory maximum.” Id.
When imposing sentence, the district court must
provide individualized reasoning. See United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009). The Carter rationale applies
to revocation hearings; however, “a court need not be as
detailed or specific when imposing a revocation sentence as it
must be when imposing a post-conviction sentence.” United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
Because White did not request a sentence different
from the one imposed, review is for plain error. See United
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States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). “To
establish plain error, [White] must show that an error occurred,
that the error was plain, and that the error affected his
substantial rights.” United States v. Muhammad, 478 F.3d 247,
249 (4th Cir. 2007). Even if White makes this showing,
“correction of the error remains within [the court’s]
discretion, which [the court] should not exercise . . . unless
the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted). In the sentencing context, an
error affects substantial rights if the defendant can show that
the sentence imposed “was longer than that to which he would
otherwise be subject.” United States v. Angle, 254 F.3d 514,
518 (4th Cir. 2001).
We conclude that White failed to make the requisite
showings. His excuses for his admitted release violations fail
to outweigh the fact that he repeatedly violated the terms of
his supervised release. The district court considered White’s
excuses and rejected them. The court explicitly considered the
Guidelines range (six to twelve months) as well as many of the
statutory factors that it was permitted to consider when
arriving at a sentence. In this regard, the court mentioned
White’s continuing criminal conduct, the leniency of the
probation officer and the court in the past, the need to deter
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future violations, White’s unsatisfactory conduct while on
supervised release, and his failure to take responsibility. In
addition, the court recommended that White receive substance
abuse treatment.
Moreover, White faces a very heavy burden on the
claims he raises. Even if he could show that his sentence was
unreasonable, he would still need to show that it was plainly
unreasonable. A sentence is “plainly unreasonable” if it
“run[s] afoul of clearly settled law.” Thompson, 595 F.3d at
549. White has flatly failed to make such a showing. In
addition, because his sentence is reviewed for plain error,
White must also show that there is a reasonable probability that
the claimed irregularity in sentencing affected his substantial
rights and that any error affected the fairness and integrity of
the judicial system. White’s assertions of error illustrate
essentially a disagreement with the district court’s conclusions
that his behavior constituted serious breaches of his release
conditions. Even assuming rational minds could differ on
whether the district court’s conclusions were exaggerated, White
cannot show that his substantial rights were affected or that
the sentencing error was so egregious that it called into
question the fairness of the sentencing system.
Accordingly, we affirm White’s sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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