United States v. Bynum

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4639

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONY DEJUAN BYNUM, a/k/a Steven Alexander Garrett,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:97-cr-00034-BR-1)

Submitted: January 18, 2011 Decided: January 26, 2011

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:

Tony DeJuan Bynum appeals the sixty-month sentence of

imprisonment imposed by the district court after finding that

Bynum violated his term of supervised release prohibiting

criminal conduct. Bynum pled guilty to conspiracy to possess

with intent to distribute cocaine base, in violation of 21

U.S.C. §§ 841(a)(1), 846 (2006), and possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).

On appeal, Bynum argues that the sentence is plainly

unreasonable because the district court procedurally erred by

failing to consider and address all of the arguments that he

made in mitigation of his sentence.

We will affirm a sentence imposed after revocation of

supervised release if it is within the prescribed statutory

range and not plainly unreasonable. United States v. Crudup,

461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a

sentence is plainly unreasonable, we first consider whether the

sentence imposed is unreasonable. Id. at 438. In making this

determination, we follow “the procedural and substantive

considerations that we employ in our review of original

sentences.” Id. at 438. In this inquiry, we take a more

deferential posture concerning issues of fact and the exercise

of discretion than reasonableness review of Guidelines

sentences. United States v. Moulden, 478 F.3d 652, 656 (4th

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Cir. 2007). Only if we find the sentence procedurally or

substantively unreasonable, must we decide whether it is

“plainly” so. Id. at 657.

While a district court must consider Chapter Seven’s

policy statements and the statutory provisions applicable to

revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006),

the district court need not robotically tick through every

subsection, and it has broad discretion to revoke the previous

sentence and impose a term of imprisonment up to the statutory

maximum provided by § 3583(e)(3). Moulden, 478 F.3d at 656-57

(4th Cir. 2007); Crudup, 461 F.3d at 439. Moreover, while a

district court must provide a statement of the reasons for the

sentence imposed, the court “need not be as detailed or specific

when imposing a revocation sentence as it must be when imposing

a post-conviction sentence.” United States v. Thompson, 595

F.3d 544, 547 (4th Cir. 2010).

We review a procedural sentencing objection raised for

the first time on appeal for plain error. United States v.

Lynn, 592 F.3d 572, 575 (4th Cir. 2010). “By drawing arguments

from § 3553 for a sentence different than the one ultimately

imposed, an aggrieved party sufficiently alerts the district

court of its responsibility to render an individualized

explanation addressing those arguments, and thus preserves its

claim.” Id. at 578. A party may do this through either its

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written papers or its in-court arguments prior to the district

court’s imposition of the sentence. Id. at 583-84.

Here, Bynum raised several arguments in the district

court, but did not request a specific sentence. Instead, Bynum

asked the court to consider his accomplishments while in prison,

and the difficulties he faced upon release “in fashioning a

sentence that’s sufficient but not greater than necessary to

achieve the purposes of sentencing on the supervised release

violation.” We find this statement insufficient to alert the

district court of its responsibility to render an individualized

explanation addressing Bynum’s arguments, and thus review his

claim for plain error.

To establish plain error, Bynum must show that: (1)

there was an error; (2) the error was plain; and (3) the error

affected his substantial rights. United States v. Olano, 507

U.S. 725, 732 (1993). Even if Bynum makes this three-part

showing, we will reverse only if the error “seriously affects

the fairness, integrity or public reputation of judicial

proceedings.” Lynn, 592 F.3d at 577. (internal quotation marks

omitted).

Our review of the record leads us to conclude that

Bynum has not established plain error. Given the deferential

appellate posture we take regarding the district court’s

exercise of discretion when imposing a revocation sentence, we

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conclude that the district court’s finding that Bynum offered no

arguments in mitigation of his sentence other than his remorse

was not plain error. Moreover, even assuming plain error, Bynum

has not shown that a more thorough explanation by the district

court specifically addressing his arguments would have affected

his sentence in light of its finding that the sixty-month

sentence was justified because Bynum received a substantial

reduction in his original sentence and his continued efforts in

distributing drugs posed a threat to society.

Accordingly, we affirm Bynum’s sentence. 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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