UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5101
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROSCOE P. MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-00785-HMH-5)
Submitted: April 20, 2012 Decided: April 25, 2012
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, William J. Watkins, Jr., Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roscoe P. Miller appeals his twenty-four-month
sentence for violation of his supervised release. Miller argues
that his revocation sentence is plainly unreasonable because the
district court failed to explain the basis for the sentence it
selected. For the reasons that follow, we affirm.
After pleading guilty to conspiracy to defraud the
United States, in violation of 18 U.S.C. § 371 (2006), Miller
was sentenced on January 19, 2010 to fifteen months in prison,
to be followed by a thirty-six-month term of supervised release.
Miller’s supervised release commenced on July 1, 2010. Miller
absconded from supervision shortly thereafter, and a warrant was
issued for his arrest. The warrant was not executed, however,
until August 26, 2011, over a year after its issuance. On
August 30, 2011, Miller’s probation officer petitioned the court
to revoke supervised release.
The district court relied on Miller’s admission to
find that Miller had violated the terms of his supervised
release. The court next detailed the relevant sentencing
calculations, including the policy statement range of five to
eleven months’ imprisonment, and the statutory maximum sentence
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of twenty-four months. 1 The court then heard argument from
counsel and allowed Miller to allocute.
Counsel for Miller noted several facts relevant to his
request for leniency, but did not argue in favor of a specific
sentence below (or within) the advisory policy statement range.
In his statement, Miller offered that he had stopped using
drugs, had recently become a father, and that he was en route to
report to his probation officer at the time of his arrest.
After expressing incredulity as to the latter contention, the
court summarily imposed the twenty-four-month sentence.
The district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Thus, we
will affirm a sentence imposed after revocation of supervised
release if it is within the governing statutory range and not
plainly unreasonable. United States v. Crudup, 461 F.3d 433,
439-40 (4th Cir. 2006). In doing so, the court “follow[s]
1
Miller’s absconding from supervision was a Grade C
violation. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 7B1.1(a)(3)(B), p.s. (2009). This, coupled with Miller’s
placement in Criminal History Category III, resulted in an
advisory policy statement range of five to eleven months’
imprisonment. USSG § 7B1.4(a), p.s. Because Miller’s
underlying offense conduct was a Class D felony, the statutory
maximum sentence for Miller’s supervised release violation was
twenty-four months. See 18 U.S.C. § 3583(e)(3) (2006).
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generally the procedural and substantive considerations” used in
reviewing original sentences. Id. at 438.
A revocation 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) (2006) 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. Thompson, 595 F.3d at 547. 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, after considering the
above, the appeals court decides that the sentence is not
unreasonable, it should affirm. Id. at 439. Only if the court
finds the sentence unreasonable must the court decide “whether
it is ‘plainly’ so.” United States v. Moulden, 478 F.3d 652,
657 (4th Cir. 2007).
Miller did not request a specific sentence, either
within or outside the policy statement range. Therefore, his
challenge to the adequacy of the explanation for his revocation
sentence is reviewed for plain error. United States v. Lynn,
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592 F.3d 572, 577-79 (4th Cir. 2010); 2 see United States v.
Williams, 401 F. App’x 776, 778 (4th Cir. 2010) (unpublished
after argument) (reviewing for plain error unpreserved objection
to supervised release revocation sentence). To establish plain
error, Miller must show that an error occurred, that the error
was plain, and that the error affected his substantial rights.
United States v. Aidoo, 670 F.3d 600, 611 (4th Cir. 2012).
Assuming, arguendo, that the district court’s
explanation was inadequate, Miller fails to argue, and nothing
in the record indicates, that the court would have imposed a
lighter sentence had it provided a more thorough explanation.
Accordingly, we conclude Miller’s challenge to his revocation
sentence cannot withstand plain error review, as he cannot
establish that any error by the district court affected his
substantial rights. See United States v. Knight, 606 F.3d 171,
178 (4th Cir. 2010) (explaining that, to demonstrate that a
sentencing error affected the defendant’s substantial rights,
“the defendant must show that he would have received a lower
sentence had the error not occurred”). We therefore affirm the
district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
2
We conclude that counsel’s bald and unsupported request
for leniency is insufficient, under Lynn, to preserve the issue
for harmless error review.
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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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