UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKIE ANTOINE HARVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:03-cr-00071-REP-1)
Submitted: December 22, 2010 Decided: January 14, 2011
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Olivia L.
Norman, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2003, Markie Antoine Harvey pleaded guilty to
possession with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a) (2006), and the district court sentenced
him to seventy months of imprisonment followed by five years of
supervised release. Subsequently, Harvey pleaded guilty to
violating the terms of his supervised release and the court
sentenced him to twenty-four months of imprisonment. Harvey now
appeals, arguing that the revocation sentence is plainly
unreasonable. For the reasons that follow, we affirm.
This court reviews a sentence imposed as a result of a
supervised release violation to determine whether the sentence
was plainly unreasonable. United States v. Crudup, 461 F.3d
433, 437 (4th Cir. 2006). The first step in this analysis is a
determination of whether the sentence was unreasonable. Id. at
438. This court, in determining reasonableness, follows
generally the procedural and substantive considerations employed
in reviewing original sentences. Id. On review, we will assume
a deferential appellate posture concerning issues of fact and
the exercise of discretion. Id. at 439.
Although a district court must consider the policy
statements in Chapter Seven of the sentencing guidelines along
with the statutory requirements of 18 U.S.C. § 3583 (2006) and
18 U.S.C. § 3553(a) (2006), “‘the court ultimately has broad
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discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum.’” Crudup, 461 F.3d at
439 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir.
2005)) (internal quotation marks omitted). If a sentence
imposed after a revocation is not unreasonable, we will not
proceed to the second prong of the analysis — whether the
sentence was plainly unreasonable. Crudup, 461 F.3d at 438-39.
On appeal, Harvey argues that the sentence is both
procedurally and substantively unreasonable. Specifically,
Harvey argues that the court failed to adequately explain the
sentence and that the sentence failed to provide for effective
rehabilitation. A district court must conduct an
“individualized assessment” of the particular facts of every
sentence, whether the court imposes a sentence above, below, or
within the guidelines range. United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). In the context of a revocation
sentence, the court must provide a statement of reasons for the
sentence imposed, as with the typical sentencing procedure, but
this statement “need not be as detailed or specific” as has been
required for departing from a traditional guidelines range.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010)
(citation omitted). In addition, “[w]here [the parties]
present[] nonfrivolous reasons for imposing a . . . sentence
[outside the advisory guidelines range,] . . . a district judge
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should address the party’s arguments and explain why he has
rejected those arguments.” Carter, 564 F.3d at 328 (internal
quotation marks and citation omitted).
“By drawing arguments from § 3553 for a sentence
different than the one ultimately imposed, an aggrieved party
sufficiently alerts the district court of its responsibility to
render an individualized explanation addressing those arguments,
and thus preserves its claim.” United States v. Lynn, 592 F.3d
572, 578 (4th Cir. 2010); see also Thompson, 595 F.3d at 546
(“[A] defendant need only ask for a sentence outside the range
calculated by the court prior to sentencing in order to preserve
his claim for appellate review.”) (citation omitted). When the
claim is preserved, this court reviews the issue for an abuse of
discretion. Lynn, 592 F.3d at 576, 579. If the district court
abused its discretion, this court will “reverse unless . . . the
error was harmless.” Id. at 576. Where the district court
commits error, the government bears the burden of demonstrating
that the error was harmless. Id. at 585.
Here, Harvey preserved his claim regarding the
adequacy of the court’s explanation for appellate review by
adducing arguments for a sentence different than that imposed by
the court. We conclude, however, the Government has
demonstrated that any error in failing to adequately explain the
sentence or respond to all of Harvey’s sentencing arguments was
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harmless. Moreover, we have thoroughly reviewed the record and
conclude that the sentence is otherwise procedurally and
substantively reasonable.
Accordingly, we affirm the judgment of the district
court. 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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