UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4497
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY GEROME MCCULLERS, a/k/a Tim,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:94-cr-00097-F-6)
Submitted: March 31, 2011 Decided: April 4, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald Cohen, Wilmington, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Gerome McCullers appeals from his
fifty-nine-month sentence imposed upon revocation of his
supervised release. Counsel has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious issues for appeal, but raising the
issue of whether McCullers’ sentence is 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 its 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) (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]
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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).
The district court followed the necessary procedural
steps in sentencing McCullers, appropriately treating the
Sentencing Guidelines as advisory, properly calculating and
considering the applicable Guidelines range, and weighing the
relevant § 3553(a) factors. The court gave sound reasoning for
imposing the above Guidelines sentence and we conclude the
sentence was reasonable. See Gall 552 U.S. at 51 (court may not
presume a sentence outside the Guidelines range is
unreasonable). The court’s sentence may be presumed reasonable
by this court.
Moreover, McCullers 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. McCullers 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.
McCullers filed a pro se supplemental brief
maintaining that his sentence was excessive and that he did not
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admit to drug distribution as a violation of his supervised
release. In accordance with Anders, we have reviewed these
issues and the record in this case and have found no meritorious
issues for appeal. We therefore affirm McCullers’ conviction
and sentence. This court requires that counsel inform
McCullers, in writing, of the right to petition the Supreme
Court of the United States for further review. If McCullers
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 withdraw from representation. Counsel’s
motion must state that a copy thereof was served on McCullers.
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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