UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5032
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO BRANCH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:01-cr-00061-HCM-1)
Submitted: May 31, 2012 Decided: June 11, 2012
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patricia Palmer Nagel, THE LAW OFFICES OF PATRICIA PALMER NAGEL,
PLC, Williamsburg, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Robert E. Bradenham, II, Assistant
United States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Branch appeals the district court’s order
revoking his supervised release and sentencing him to thirty
months’ imprisonment. Branch argues his revocation sentence is
procedurally unreasonable because the district court failed to
properly calculate the Guidelines range and substantively
unreasonable because the district court’s rationale did not
adequately support the sentence imposed. We affirm.
This court will affirm a sentence imposed after
revocation of supervised release if the sentence is within the
applicable statutory maximum and is not “plainly
unreasonable.” United States v. Crudup, 461 F.3d 433, 437, 439-
40 (4th Cir. 2006). In determining whether a revocation
sentence is “plainly unreasonable,” the court first assesses the
sentence for unreasonableness, “follow[ing] generally the
procedural and substantive considerations that [it] employ[s] in
[its] review of original sentences[.]” Id. at 438.
A revocation sentence is procedurally reasonable if
the district court considered the Sentencing Guidelines Chapter
7 advisory policy statements and the 18 U.S.C. § 3553(a) (2006)
factors that it is permitted to consider in a supervised release
revocation case. Id. at 440. A revocation sentence is
substantively reasonable if the district court stated a proper
basis for concluding the defendant should receive the sentence
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imposed, up to the statutory maximum. Id. Only if a sentence
is found procedurally or substantively unreasonable will this
court “then decide whether the sentence is plainly
unreasonable.” Id. at 439. A sentence is “plainly” unreasonable
if it is clearly or obviously unreasonable. Id. Branch argues
the district court erred in calculating his Guidelines range by
failing to apply the Fair Sentencing Act of 2010 (“FSA”), Pub.
L. No. 111-220, 124 Stat. 2372, to his original, underlying
felony conviction, which, Branch contended, would have the
effect of lowering his Guidelines sentencing range. This court
has held that the FSA is not retroactive for offenders, like
Branch, whose sentencing pre-dated the effective date of the
statute. United States v. Bullard, 645 F.3d 237, 248-49 (4th
Cir.) (“We agree with all eight circuits that have ruled on the
issue that the FSA contains no express statement of
retroactivity, nor can any such intent be inferred from its
language.”), cert. denied, 132 S. Ct. 356 (2011). Thus, we
conclude the FSA had no bearing on Branch’s Guidelines range.
As to the substantive reasonableness of Branch’s sentence, we
have examined the transcript of the sentencing hearing and
conclude that the district court’s statements adequately support
the sentence it imposed. Accordingly, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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