UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4224
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOEL CHRISTOPHER SIMCOX,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:03-cr-00248-JAB-1)
Submitted: July 7, 2011 Decided: August 1, 2011
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Angela Hewlett Miller, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joel Christopher Simcox was sentenced to fifteen
months’ imprisonment following the revocation of his supervised
release. Simcox’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating his opinion that there
are no meritorious issues for appeal but questioning whether the
district court properly ran Simcox’s sentence consecutive to an
undischarged state sentence. Simcox filed a pro se supplemental
brief raising essentially the same claim. The Government has
declined to file a responsive brief. We affirm.
In reviewing a sentence imposed upon revocation of
supervised release, this court “takes a more ‘deferential
appellate posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433,
439 (4th Cir. 2006)). We will affirm a sentence imposed after
revocation of supervised release if it is not plainly
unreasonable. United States v. Thompson, 595 F.3d 544, 546 (4th
Cir. 2010). The first step in this review requires a
determination of whether the sentence is unreasonable. Crudup,
461 F.3d at 438. Only if the sentence is procedurally or
substantively unreasonable does the inquiry proceed to the
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second step of the analysis to determine whether the sentence is
plainly unreasonable. Id. at 438-39.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
advisory policy statement range based upon Chapter Seven of the
Guidelines and the § 3553(a) factors applicable to supervised
release revocation. See 18 U.S.C. § 3583(e) (2006); Crudup, 461
F.3d at 438-40. A sentence is substantively reasonable if the
district court stated a proper basis for concluding the
defendant should receive the sentence imposed, up to the
statutory maximum. Crudup, 461 F.3d at 440. “A court need not
be as detailed or specific when imposing a revocation sentence
as it must be when imposing a post-conviction sentence, but it
still must provide a statement of reasons for the sentence
imposed.” Thompson, 595 F.3d at 547 (internal quotation marks
omitted).
Simcox argues that the district court erred in
imposing his sentence consecutive to his undischarged term of
state imprisonment because it constitutes double counting under
U.S. Sentencing Guidelines Manual (USSG) § 5G1.3(b) (2009). We
conclude that § 5G1.3(b) is inapplicable here. Application Note
3(C) provides that “[s]ubsection (c) applies in cases in which
the defendant was on federal or state probation, parole, or
supervised release at the time of the instant offense and has
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had such probation, parole, or supervised release revoked.”
USSG § 5G1.3 cmt. n.3(c). Subsection (c) permitted the district
court to impose Simcox’s federal sentence to run consecutively
to his state sentence. See USSG § 5G1.3(c).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Accordingly, we affirm the judgment of the district court. This
court requires that counsel inform Simcox, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Simcox 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 Simcox.
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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