UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4961
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:95-cr-00057-F-4)
Submitted: April 12, 2010 Decided: April 22, 2010
Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant 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, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Smith appeals the district court’s order
revoking his supervised release and sentencing him to twenty-six
months in prison. We affirm.
I
Smith was convicted of a drug offense in 1995 and was
sentenced to ninety months in prison, to be followed by a five-
year term of supervised release. Smith’s term of supervised
release commenced in December 2001. In 2005, his release was
revoked. He was sentenced to twenty-four months in prison, to
be followed by thirty-six months of supervised release. In
2007, Smith’s release was again revoked, and he was sentenced to
ten months in prison, to be followed by twenty-six months of
supervised release.
Smith’s most recent term of release began in January
2008. In July 2009, his probation officer moved to revoke his
release based on three violations. Smith admitted two of the
violations. The district court heard evidence on the third,
which charged criminal conduct. The court concluded that Smith
had committed the three violations as charged. The court
revoked release and sentenced him to twenty-six months in
prison. In sentencing Smith, the court stated:
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The court has considered the policy statements on
revocations contained in Chapter Seven of [the] U.S.
Sentencing Guidelines.
Smith’s performance under the most recent term of
supervision has been marginal at best. The motion for
revocation clearly documents a history of substantial
noncompliance and frequent violation conduct.
Smith has historically shown some promise early in the
supervision process, but he inevitably reverts to
behavior indicative of an unmotivated, careless
lifestyle.
By his very nature, he is a reckless and impulsive
individual. This behavior coupled with the likelihood
of drug and/or alcohol abuse presents serious danger
to the community.
In view thereof, a sentence of twenty-six months is
appropriate. . . . This was a Grade B violation,
criminal history category II, with a custody range of
six to twelve months. The court has departed upwardly
for the reasons heretofore indicated inasmuch as the
sentence will allow the defendant to receive intensive
substance abuse treatment while incarcerated, which
the court recommends.
II
We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
maximum and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). We first determine
whether the sentence is unreasonable, following generally the
model for reviewing original sentences set forth in Gall v.
United States, 552 U.S. 38 (2007), “with some necessary
modifications to take into account the unique nature of
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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.
§ 3583(e); Crudup, 461 F.3d at 438-40. The relevant § 3553(a)
factors are: “the nature and circumstances of the offense and
the history and characteristics of the defendant,” § 3553(a)(1),
and the need for the sentence “to afford adequate deterrence to
criminal conduct, . . . protect the public from further crimes
of the defendant, . . . [and] provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner. . . .”
§ 3553(a)(2)(B)-(D).
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. Only if we find a sentence procedurally or
substantively unreasonable will we consider whether the sentence
is plainly unreasonable. Id.
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III
We conclude that Smith’s sentence, which falls within
the statutory maximum, is not procedurally or substantively
unreasonable. The district court considered the Chapter 7
policy statements and relevant § 3553(a) factors and adequately
explained its reasons for the sentence.
We therefore affirm. 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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