United States v. Adrian Chavez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4056

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ADRIAN CHAVEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00037-BO-1)

Submitted: October 10, 2012 Decided: October 15, 2012

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Adrian Chavez appeals the district court’s order

revoking his term of supervised release and imposing a sentence

of thirty-six months’ imprisonment. Counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967),

certifying that there are no meritorious issues for appeal, but

questioning whether the district court erred in imposing the

maximum sentence and whether the district court provided Chavez

sufficient notice regarding the upward departure from the

Guidelines range. Chavez was given the opportunity file a pro

se supplemental brief, but has not done so. The Government

declined to file a response brief. We affirm.

A district court has broad discretion to impose a

sentence revoking a defendant’s supervised release. United

States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will

affirm a sentence imposed after revocation of supervised release

if it is within the statutory maximum and is not “plainly

unreasonable.” United States v. Crudup, 461 F.3d 433, 439-40

(4th Cir. 2006). In making this determination, we first

consider whether the sentence imposed is procedurally and

substantively unreasonable. Id. at 438. A supervised release

revocation sentence is procedurally reasonable if the district

court has considered the advisory policy statement range and the

18 U.S.C. § 3553(a) (2006) factors applicable to supervised

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release revocation. Id. at 438-40. “A court need not be as

detailed or specific when imposing a revocation sentence as it

must be when imposing a post-conviction sentence, but it still

must provide a statement of reasons for the sentence

imposed.” Thompson, 595 F.3d at 547 (internal quotation marks

omitted). A sentence is substantively reasonable if the

district court stated a proper basis for concluding the

defendant should receive the sentence imposed, up to the

statutory maximum. Crudup, 461 F.3d at 440. Only if a sentence

is found procedurally or substantively unreasonable will we

“then decide whether the sentence is plainly unreasonable.” Id.

at 439.

After review of the record, we conclude that the

revocation sentence is both procedurally and substantively

reasonable. The thirty-six-month sentence does not exceed the

applicable statutory maximum. The district court sufficiently

explained its rationale for imposing the statutory maximum

sentence, emphasizing the dangerous nature of the weapon found

in Chavez’s possession, the severe danger posed by Chavez to the

community, and the fact that Chavez’s prior sentence had no

deterrent affect on his criminal conduct. In addition, the

district court was not required to provide Chavez advance notice

of its consideration of a sentence above the Guidelines range,

as Fed. R. Crim. P. 32.1, which governs revocation of supervised

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release, does not require advance notice of a potential sentence

in excess of the Guidelines range.

In accordance with Anders, we have reviewed the entire

record for meritorious issues and have found none. We therefore

affirm the district court’s judgment. This court requires that

counsel inform Chavez, in writing, of his right to petition the

Supreme Court of the United States for further review. If

Chavez requests that a petition be filed, but counsel believes

that such a petition would be frivolous, counsel may move in

this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Chavez. 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