UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4273
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMARIS JEROME JENKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00038-WO-1)
Submitted: October 30, 2012 Decided: January 3, 2013
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demaris Jerome Jenkins appeals from the district
court’s revocation of his supervised release and imposition of
the statutory maximum twenty-four months in prison. On appeal,
his attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), concluding that there are no meritorious
issues for appeal but questioning whether the court failed to
adequately consider mitigating sentencing circumstances and
whether the court imposed a sentence greater than necessary to
comply with the statutory sentencing factors. Neither the
Government nor Jenkins has filed a brief. We affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a
sentence is plainly unreasonable, we must first consider whether
the sentence is unreasonable. Id. at 438. In making this
determination, we follow “the procedural and substantive
considerations that [we use in the] review of original
sentences.” Id. In this inquiry, we “take[] 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) (internal quotation marks omitted). Only if we find
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the sentence procedurally or substantively unreasonable must we
decide whether it is “plainly” so. Id. at 657. A sentence is
plainly unreasonable if it runs afoul of clearly settled
law. United States v. Thompson, 595 F.3d 544, 548 (4th Cir.
2010).
Regarding variances, we “may consider the extent of
the deviation [from the recommended Guidelines range], but must
give due deference to the district court’s decision that the [18
U.S.C.] § 3553(a) [2006] factors, on a whole, justify the extent
of the variance.” Gall v. United States, 552 U.S. 38, 51
(2007). “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.” 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.” Thompson, 595 F.3d
at 547 (noting that a district court’s reasoning may be “clear
from context” and the court’s statements throughout the
sentencing hearing may be considered).
Jenkins argues first that the sentence imposed is
procedurally unreasonable because the district court failed to
consider his mitigating circumstances. We conclude that the
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record does not support Jenkins’ assertions. The court clearly
heard Jenkins’s arguments for leniency, but the court rejected
his attempts to minimize his actions by noting the repetitive
nature of his violations, as well as the fact that the
violations occurred soon after his release. Moreover, the court
properly considered the nature and circumstances of Jenkins’s
underlying conviction, the lenient sentence given on that
conviction, and Jenkins’s failure to accept
responsibility. See United States v. Johnson, 640 F.3d 195,
203-04 (6th Cir. 2011) (noting that district court may consider
leniency of original sentence in determining extent of breach of
trust). Finally, the court gave specific, detailed reasoning
for the upward variance from the twelve-to-eighteen-month
Guidelines range, and Jenkins does not argue otherwise.
Accordingly, we find that the sentence is not procedurally
unreasonable.
Next, we hold that the sentence was substantively
reasonable, as it was within the prescribed statutory range and
resulted from the district court’s proper weighing of the
relevant § 3553(a) factors and policy statements. Under 18
U.S.C. § 3583(e) (2006), the district may revoke a term of
supervised release and sentence a defendant to serve all or part
of the remaining supervised release term in prison after
weighing the factors set forth in § 3553(a)(1), (a)(2)(B),
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(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). Here,
the court considered the nature and circumstances of the
offense, Jenkins’s history and characteristics, and the
necessity of deterring further criminal conduct and protecting
the public. 18 U.S.C. § 3553(a)(1), (2)(B), (2)(C). Therefore,
Jenkins’s sentence is substantively reasonable.
In accordance with Anders, we have reviewed the entire
record for reversible error and have found none. As such, we
affirm Jenkins’s revocation and sentence. This court requires
that counsel inform Jenkins in writing of his right to petition
the Supreme Court of the United States for further review. If
Jenkins requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may motion
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Jenkins. 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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