United States v. Davin Zimmerman

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4668


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAVIN JAN-MICHAEL ZIMMERMAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:09-cr-00115-CCE-1)


Submitted:   May 26, 2016                     Decided:   May 31, 2016


Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant.   Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Davin Jan-Michael Zimmerman appeals the 30-month sentence

imposed upon revocation of his term of supervised release.             The

revocation sentence reflected a term of 18 months’ imprisonment

upon the revocation of supervision on Counts 1, 2, 6, and 7 of his

original sentence and a consecutive 12 months’ imprisonment upon

the revocation of supervision of Count 3 of his original sentence.

Counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there are no meritorious grounds for

appeal,   but    questioning   whether     the   sentence    imposed   was

reasonable.     Zimmerman was advised of his right to file a pro se

supplemental brief, but he did not file one.          We affirm.

      We will not disturb a sentence imposed after revocation of

supervised release that is within the prescribed statutory range

and is not plainly unreasonable.          United States v. Crudup, 461

F.3d 433, 437-39 (4th Cir. 2006).         In making this determination,

“we    follow     generally    the       procedural    and    substantive

considerations” used in reviewing original sentences.         Id. at 438.

      A sentence is procedurally reasonable if the district court

has considered the policy statements contained in Chapter Seven of

the Guidelines and the applicable 18 U.S.C. § 3553(a) (2012)

factors, id. at 440, and has adequately explained the sentence

chosen, though it need not explain the sentence in as much detail

as when imposing the original sentence. United States v. Thompson,

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595 F.3d 544, 547 (4th Cir. 2010).              A sentence is substantively

reasonable if the district court states a proper basis for its

imposition of a sentence up to the statutory maximum.                 Crudup, 461

F.3d at 440.       If, based on this review, the appeals court decides

that the sentence is not unreasonable, it should affirm.                     Id. at

439.

       In the initial inquiry, we take a more deferential posture

concerning issues of fact and the exercise of discretion than when

we apply the reasonableness review to post-conviction Guidelines

sentences.     United States v. Moulden, 478 F.3d 652, 656 (4th Cir.

2007).      Only if we find the sentence unreasonable must we decide

whether it is “plainly” so.          Id. at 657.

       Although    counsel       questions    whether   there    is    any    error

rendering Zimmerman’s sentence plainly unreasonable, he identifies

no such error.      The district court properly calculated the Policy

Statement      range       and    sentenced     Zimmerman   to        30     months’

imprisonment, a sentence within the Policy Statement range and

below the statutory maximum.          18 U.S.C. § 3583(e)(3) (2012); U.S.

Sentencing Guidelines Manual § 7B1.4(a); see United States v.

Johnson,     138    F.3d    115,    118-19    (4th   Cir.   1998)      (upholding

consecutive revocation sentences).            Our review of the record leads

us     to   conclude   that       Zimmerman’s    sentence   is    not        plainly

unreasonable.



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       In accordance with Anders, we have reviewed the entire record

in this case and have found no meritorious issues for appeal.                We

therefore    affirm.     This    court      requires   that    counsel   inform

Zimmerman, in writing, of the right to petition the Supreme Court

of the United States for further review.               If Zimmerman 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 of the motion was served on Zimmerman.                 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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