United States v. Shipman

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4337

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

EDWARD VENEZ SHIPMAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:03-cr-00044-F-1)

Submitted: October 29, 2010 Decided: November 12, 2010

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:

Edward Venez Shipman appeals the twenty-four-month

sentence he received upon revocation of his supervised release.

He contends that the district court imposed a plainly

unreasonable sentence, failing to address mitigating factors and

to provide sufficient reason for a sentence above the 7-13-month

revocation range set out in Chapter 7 of the U.S. Sentencing

Guidelines Manual (2009). We affirm.

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). We will

affirm unless the sentence is “plainly unreasonable” in light of

the applicable 18 U.S.C. § 3553(a) (2006) factors. United

States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006).

We must first “decide whether the sentence is

unreasonable.” Id. at 438. In doing so, we “follow generally

the procedural and substantive considerations” used in reviewing

original sentences. Id.. A sentence is procedurally reasonable

if the district court has considered the policy statements

contained in Chapter 7 of the guidelines and the applicable

§ 3553(a) 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

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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, we are convinced that the

sentence is not unreasonable, we will affirm. Id. at 439.

Under this court’s deferential standard of review,

Shipman’s sentence is not procedurally or substantively

unreasonable. Shipman argues that the district court failed to

consider his inability to secure a stable residence. He also

claims that the court failed to give sufficient reasons for the

extent of its variance above the guideline range, and thus

failed to follow the mandate in § 3553(a) to impose a sentence

“sufficient but not greater than necessary” to fulfill the

statute’s sentencing purposes. The court also heard the

probation officer’s testimony about his effort to supervise

Shipman for over a year and Shipman’s lack of cooperation, as

evidenced by his repeated marijuana use, additional criminal

conduct, failure to stay in contact with the probation officer,

and unwillingness to return to a residential reentry center to

remedy his homeless state. Last, the district court heard

Shipman’s statement in which he asserted that the probation

officer had failed to help him despite his requests for help.

The district court expressly considered the advisory

Chapter 7 guideline range of 7-13 months. However, the court

determined that the guideline range did not adequately account

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for Shipman’s “pattern of refusing to follow the rules,” thus

impliedly accepting the probation officer’s version of events

during his period of supervised release. A revocation sentence

“should sanction primarily the defendant’s breach of trust.”

USSG ch. 7, pt. A, intro. cmt. 3(b). We conclude that Shipman’s

twenty-four-month sentence was not unreasonable.

We therefore affirm the sentence imposed by the

district court. 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