UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4569
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KILBY GRAYSON BARBEE, a/k/a Grayson Barbee, a/k/a Graton
Barbee, a/k/a Kilby C. Barbee,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:06-cr-00017-F-1)
Submitted: March 10, 2011 Decided: March 21, 2011
Before WILKINSON, NIEMEYER, and WYNN, 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Affirmed by unpublished per curiam opinion.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, Jennifer P. May-
Parker, Felice McConnell Corpening, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kilby Grayson Barbee appeals from his
twenty-four-month sentence imposed upon revocation of his
supervised release. On appeal, he asserts that his sentence is
procedurally and substantively unreasonable. 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 guidelines sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007). In making this 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.
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.
2
§ 3583(e) (2006); 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 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:
The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking
authority. . . . Where the defendant . . . presents
nonfrivolous reasons for imposing a different sentence
than that set forth in the advisory Guidelines, a
district judge should address the party’s arguments
and explain why he has rejected those arguments.
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).
3
Here, the district court considered Barbee’s arguments
for a sentence combining incarceration, home confinement, and
drug treatment, and rejected them. The court explicitly
considered the Guidelines range 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 Barbee’s
continued drug use even after drug treatment, the need to
protect society from the consequences of Barbee’s drug use, and
the need for Barbee to receive further treatment. As such, the
district court adequately discussed the reasons for the chosen
sentence, and thus, Barbee’s sentence was procedurally
reasonable.
Turning to the substantive reasonableness of Barbee’s
sentence, the district court’s decision that another period of
non-incarcerated (or minimally incarcerated) drug treatment was
not a sufficient sanction for Barbee’s multiple violations of
supervised release was not an abuse of discretion. In addition,
the length of the sentence and the court’s recommendation
increased the likelihood that Barbee would receive the requested
and recommended intensive drug treatment while in prison. See
Crudup, 461 F.3d at 440 (upholding imposition of maximum
sentence for revocation of supervised release based, in part, on
need for substance abuse treatment and recommendation that
Crudup receive intensive substance abuse treatment while
4
incarcerated). Finally, Barbee failed to show in district court
or on appeal that there was a permissible way of structuring his
sentence that would ensure both a substantial sentence and
continued intensive drug treatment.
Moreover, Barbee faces a very heavy burden in
challenging his sentence. 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 548. Barbee has not cited clearly settled law that was
violated by the district court’s sentence, and the record does
not reveal any such obvious errors.
Accordingly, we affirm Barbee’s sentence. We deny
Barbee’s motion to file a pro se reply brief. 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
5