UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4437
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PAIGE LEE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00382-JAB-1)
Submitted: November 4, 2011 Decided: November 17, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Burell Shella, C. BURELL SHELLA, PC, Durham, North Carolina,
for Appellant. Michael Francis Joseph, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Paige Lee appeals from the district court’s
judgment and commitment order finding Lee violated the terms of
supervised release, revoking his supervised release and
sentencing him to eleven months’ imprisonment and twenty-five
months’ supervised release. Lee’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
asserting there are no meritorious arguments for appeal but
raising for the Court’s consideration whether the sentence was
an abuse of discretion. Lee was informed of the opportunity to
file a pro se supplemental brief, but chose not to do so. The
Government declined to file a brief.
A sentence imposed after revocation of supervised
release should be affirmed if it is within the applicable
statutory maximum and not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). This
court first considers whether the sentence is unreasonable. Id.
at 438. “This initial inquiry takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for guideline sentences.”
United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007)
(applying same standard of review for probation revocation as
for supervised release revocation) (internal quotation marks
omitted). This court should affirm if the sentence is not
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unreasonable. Crudup, 461 F.3d at 439. Only if a sentence is
found procedurally or substantively unreasonable will this court
“decide whether the sentence is plainly unreasonable.” Id.
In reviewing for reasonableness, this court “follow[s]
generally the procedural and substantive considerations that
[are] employ[ed] in [the] review of original sentences, . . .
with some necessary modifications to take into account the
unique nature of supervised release revocation sentences.”
Crudup, 461 F.3d at 438-39 (alterations added) (citation
omitted). A sentence imposed upon revocation of release is
procedurally reasonable if the district court considered the
Chapter Seven policy statements and the 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2011) factors that it is permitted to
consider. See 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at
438-40. Relevant factors include: “the nature and
circumstances of the offense and the history and characteristics
of the defendant,” 18 U.S.C.A. § 3553(a)(1), and the need for
the sentence “to afford adequate deterrence to criminal conduct,
. . . protect the public from further crimes of the defendant,
. . . . [and] provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner. . . .” 18 U.S.C.A.
§§ 3553(a)(2)(B)-(D). A sentence imposed upon revocation of
release is substantively reasonable if the district court stated
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a proper basis for concluding that the defendant should receive
the sentence imposed, up to the statutory maximum. Crudup, 461
F.3d at 440. The district court “ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum[.]” Crudup, 461 F.3d
at 439 (internal quotation marks omitted).
It was correctly noted by the district court that Lee
faced a statutory maximum of two years’ imprisonment. See 18
U.S.C. § 3583(e)(3). Because Lee admitted to testing positive
for marijuana use three times or more in a one year period, the
court was directed to revoke Lee’s supervised release and
require he serve a term of imprisonment. See 18 U.S.C.
§ 3583(g). Under the Sentencing Guidelines Chapter Seven policy
statement, Lee’s range of imprisonment was five to eleven
months. See U.S. Sentencing Guidelines Manual § 7B1.4(a). In
addition, because the court sentenced Lee to eleven months and
the maximum period of supervised release for the conviction was
three years, the court was authorized to impose up to a twenty-
five month term of supervised release. See 18 U.S.C. § 3583(h).
We conclude that the eleven month sentence was
procedurally reasonable because the district court acknowledged
it considered the Guidelines policy range and the § 3553(e)
sentencing factors. Furthermore, the court stated appropriate
reasons for ordering Lee serve an eleven month sentence, noting
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his continued drug use and his unwillingness to participate in
mental health counseling. We further conclude that because the
court stated appropriate reasons for imposing a sentence at the
high end of the advisory Guidelines, the sentence was
substantively reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment and commitment
order. This court requires that counsel inform Lee, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Lee 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 Lee. 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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