UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4367
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE HAMES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:95-cr-00178-MOC-8)
Submitted: March 29, 2016 Decided: March 31, 2016
Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Roderick G. Davis, LAW OFFICE OF RODERICK G. DAVIS, PLLC,
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Unpublished opinions are not binding precedent in this circuit.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:
Lonnie Hames, Jr., appeals from the 22-month sentence imposed
upon revocation of his supervised release. On appeal, Hames
contends that the sentence imposed is procedurally and
substantively unreasonable and that the district court erred by
imposing an upward departure sentence without having given prior
notice of the intent to depart. Finding no error, plain or
otherwise, we affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United States v.
Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will affirm a
revocation sentence if it is within the statutory maximum and not
plainly unreasonable. United States v. Crudup, 461 F.3d 433, 439-
40 (4th Cir. 2006). We first consider whether the sentence is
procedurally or substantively unreasonable, employing the same
general considerations applied during review of original
sentences. Id. at 438. In this initial inquiry, we “take[ ] 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) (internal quotation marks omitted). If we
find the sentence unreasonable, we must then determine whether it
is “plainly” so. Id. at 657.
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A supervised release revocation sentence is procedurally
reasonable if the district court considered the Chapter 7 policy
statements in the Sentencing Guidelines and the 18 U.S.C. § 3553(a)
(2012) factors applicable in the supervised release revocation
context, see 18 U.S.C. § 3583(e) (2012); Crudup, 461 F.3d at 439,
and provided sufficient explanation for the sentence imposed, see
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). The
district court’s explanation “need not be as detailed or specific
when imposing a revocation sentence as it must be when imposing a
post-conviction sentence.” Id.
Hames contends that the district court failed to adequately
consider and apply the sentencing factors in determining his
sentence and failed to provide a sufficient explanation for the
upward variant sentence it imposed. We reject both of these
contentions.
First, our review of the record leads us to conclude that the
district court sufficiently considered the applicable policy
statements as well as the sentencing factors. The court noted the
policy statement recommendation of an 8-to 14-month sentence and,
addressing the relevant factors, the court emphasized two factors
in particular: the need to “protect the public from further crimes
of the defendant” and the need to “afford adequate deterrence.”
18 U.S.C. §§ 3553(a)(2)(B), (C); 3583(a)(1). Additionally, the
court noted that this was Hames’ third violation of supervised
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release and concluded that an upward variant sentence was necessary
to protect the public and to provide deterrence, in light of Hames’
repeated violations.
Nor do we find any procedural error in the district court’s
justification for the upward variance imposed. The court’s
statements prior to sentencing Hames reflect its view that a
sentence within the calculated policy statement range would be
insufficient given the facts and circumstances of this case, which
established Hames’ repeated failures to comply with the
requirements of his supervision. We further conclude that the
court’s explanation for the selected sentence is sufficient.
Although Hames contends that the court failed to give required
notice that it would impose a sentence above the policy statement
range, such notice is not required, United States v. Ryans, 237 F.
App’x 791, 794 (4th Cir. 2007); see Irizarry v. United States, 553
U.S. 708, 716 (2008) (holding that notice requirement of Fed. R.
Crim. P. 32(h) is not applicable to variances above advisory
Guidelines ranges). Additionally, although not required, the
court had provided Hames with notice when, during a prior
revocation proceeding, it warned him that an upward departure would
be imposed if he committed another Class C violation of the terms
of his supervision.
We have reviewed the record and conclude that Hames’ sentence
is within the statutory maximum and that the district court
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adequately explained the reasons for the upward departure
sentence. We therefore conclude that the sentence imposed was not
plainly unreasonable. See Crudup, 461 F.3d at 439-40.
Accordingly, we affirm the revocation judgment. 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
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