United States v. Timothy Person

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4178

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY LEON PERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (4:08-cr-00011-D-1)

Submitted: September 20, 2012 Decided: October 22, 2012

Before MOTZ, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

In 2009, Timothy Leon Person pled guilty pursuant to a

plea agreement to one count of misprision of felony, in

violation of 18 U.S.C. § 4 (2006), and was sentenced to three

years probation. Person appeals the district court’s judgment

revoking his probation and imposing a thirty-month sentence.

Finding no error, we affirm.

Upon a finding of a probation violation, the district

court may revoke probation and resentence a defendant to any

sentence within the statutory maximum for the original offense.

18 U.S.C. § 3565(a) (2006); United States v. Schaefer, 120 F.3d

505, 507 (4th Cir. 1997). We apply the same standard of review

for probation revocation as for supervised release revocation.

United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007).

Thus, a probation revocation sentence should be affirmed if it

is within the applicable statutory maximum and is not plainly

unreasonable. * United States v. Crudup, 461 F.3d 433, 438-40

(4th Cir. 2006).

*
Although Person acknowledges that we review probation
revocation sentences under a plainly unreasonable standard of
review, he insists that an abuse-of-discretion standard of
review should apply. We decline Person’s invitation to revisit
our previous decisions holding that a “plainly unreasonable”
standard of review applies to revocation sentences. See United
States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (holding
that only an en banc court, not a subsequent panel, has
authority to overturn a previous panel’s published decision).

2
 To determine whether a sentence is plainly

unreasonable, we first consider whether the sentence is

unreasonable. Id. at 438. 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 . . . revocation sentences.” Id.

at 438-39. A sentence imposed upon revocation of probation is

procedurally reasonable if the district court considered the

Chapter Seven policy statements and the applicable 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2012) factors. Moulden, 478 F.3d

at 656. The court need not robotically tick through every

subsection of § 3553(a), however. Id. at 657.

A revocation sentence is substantively reasonable if

the district court stated a proper basis for concluding that the

defendant should receive the sentence imposed, up to the

statutory maximum. Crudup, 461 F.3d at 440. Ultimately, the

court has broad discretion to revoke probation and impose a

sentence up to that maximum. Moulden, 478 F.3d at 657. Only if

a sentence is found procedurally or substantively unreasonable

will we “decide whether the sentence is plainly unreasonable[.]”

Crudup, 461 F.3d at 439.

With these principles in mind, we conclude that the

thirty-month sentence is not plainly unreasonable. Although

3
Person was sentenced above the recommended policy statement

range and his Guidelines range, the district court’s explanation

for the sentence reveals that the court considered the policy

statements and the § 3553(a) factors when determining the

sentence, which was below the statutory maximum applicable to

Person’s conviction.

Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the material before the

court and argument would not aid the decisional process.

AFFIRMED

4