UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUANE LEROY FOX,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00045-MOC-1)
Submitted: January 28, 2016 Decided: February 9, 2016
Before MOTZ and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duane Leroy Fox appeals his 12-month sentence received
after revocation of supervised release. On appeal he contends
that: (1) the district court committed plain error when it
failed to invite him to address the court before imposing his
sentence; and (2) the sentence is plainly unreasonable because
the district court failed to determine and consider the
Sentencing Guidelines policy statement range before imposing the
sentence. For the reasons that follow, we affirm.
We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
plainly unreasonable. United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006). Only if a revocation sentence is
unreasonable, must we assess whether it is plainly so. United
States v. Moulden, 478 F.3d 652, 656-57 (4th Cir. 2007). In
determining whether a revocation sentence is unreasonable, we
strike a more deferential appellate posture than when reviewing
original sentences, id. at 656, and apply the same procedural
and substantive considerations that guide a court’s review of
original sentences. Crudup, 461 F.3d at 438. A sentencing
court must consider both the policy statements and the
applicable policy statement range found in Chapter 7 of the
Sentencing Guidelines manual, as well as the applicable
18 U.S.C. § 3553(a) (2012) factors. Moulden, 478 F.3d at 656-
2
57. The court need not analyze every § 3553(a) factor.
Ultimately, a sentencing court has broad discretion to revoke
release and to impose a term of imprisonment up to the statutory
maximum. Id. at 657.
Before imposing a sentence, a district court must address
the defendant personally in order to permit him to speak or
present any information to mitigate the sentence. Fed. R. Crim.
P. 32(i)(4)(A)(ii); see United States v. Muhammad, 478 F.3d 247,
248-49 (4th Cir. 2007). Fox alleges that the district court
erred when it did not invite him to address the court prior to
imposing sentence. Because Fox raises this issue for the first
time on appeal, we review the issue only for plain error.
United States v. Olano, 507 U.S. 725, 731-32 (1993). Because
Fox addressed the court several times before he was sentenced,
we find that any error was harmless.
Next, Fox alleges error because the district court failed
to consider his policy statement range. When imposing a
revocation sentence, a district court must “consider the policy
statements contained in Chapter 7, including the policy
statement range, as ‘helpful assistance,’ and . . . consider the
applicable § 3553(a) factors.” Moulden, 478 F.3d at 656–57
(quoting Crudup, 461 F.3d at 439). The record reveals that the
district court did consider relevant § 3553(a) factors, and had
read the probation officer’s petition, which discussed Fox’s
3
policy statement range. Given that Fox’s policy statement range
was 24 months, and the court imposed a 12-month sentence after
considering relevant § 3553(a) factors, we discern no reversible
error. Moreover, we note that the district court was faced with
a cantankerous, foul-mouthed defendant, who was threatening his
probation officer at the hearing. In the context of this
proceeding, we do not find that Fox’s 12-month sentence was
plainly unreasonable, despite the court’s failure to recite
Fox’s policy statement range prior to sentencing.
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
4