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United States v. Moore, 4th Cir. (2010)

The United States Court of Appeals for the Fourth Circuit affirmed the district court's revocation of Ricky Moore's supervised release and his 21-month sentence. While the district court correctly calculated the guideline range, it failed to provide any explanation for the sentence imposed. However, because Moore failed to object, the appeals court reviewed for plain error and found that while the district court erred, the error did not affect Moore's substantial rights as he was sentenced at the low end of the guideline range. The appeals court also found the sentence substantively reasonable.

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United States v. Moore, 4th Cir. (2010)

The United States Court of Appeals for the Fourth Circuit affirmed the district court's revocation of Ricky Moore's supervised release and his 21-month sentence. While the district court correctly calculated the guideline range, it failed to provide any explanation for the sentence imposed. However, because Moore failed to object, the appeals court reviewed for plain error and found that while the district court erred, the error did not affect Moore's substantial rights as he was sentenced at the low end of the guideline range. The appeals court also found the sentence substantively reasonable.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 09-4637

UNITED STATES OF AMERICA,


Plaintiff - Appellee,
v.
RICKY MOORE,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:98-cr-00183-JAB-3)

Submitted:

March 30, 2010

Decided:

April 16, 2010

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior


Circuit Judge.

Affirmed by unpublished per curiam opinion.

Brian M. Aus, Durham, North Carolina, for Appellant. Lisa Blue


Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Ricky Moore appeals the district courts revocation of
his supervised release and the twenty-one month sentence imposed
upon revocation.
to

Anders

v.

Appellate counsel has filed a brief pursuant

California,

386

U.S.

738

(1967),

questioning

whether the district court erred in revoking Moores supervised


release and sentencing Moore to twenty-one months imprisonment,
but

concluding

there

are

no

meritorious

grounds

for

appeal.

Moore did not file a pro se supplemental brief despite being


informed of his right to do so, and the Government elected not
to file a brief.

We affirm.

After considering the applicable 18 U.S.C. 3553(a)


(2006) factors, a district court may revoke a term of supervised
release upon finding by a preponderance of the evidence that the
defendant violated a condition of supervised release.

3583(e)(3)

credibility

(2006).

We

determinations

review
for

such

clear

factual
error.

18 U.S.C.

findings
See

and

United

States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).


We will affirm a sentence imposed after revocation of
supervised

release

if

it

is

within

the

maximum and is not plainly unreasonable.

applicable

statutory

See United States v.

Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).

We first

assess the sentence for unreasonableness, follow[ing] generally


the procedural and substantive considerations that we employ in
2

our review of original sentences, . . . with some necessary


modifications

to

take

into

account

the

unique

supervised release revocation sentences.

nature

of

Id. at 438-39; see

United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (In
applying

the

determine,
States,

plainly

using

552

the

U.S.

unreasonable.).

unreasonable

instructions
38
If

given

(2007)],
we

standard,
in

whether

conclude

that

unreasonable, we will affirm the sentence.


439.

Gall
a

we

first

[v.

United

sentence

sentence

is

is
not

Crudup, 461 F.3d at

Only if a sentence is found procedurally or substantively

unreasonable will we decide whether the sentence is plainly


unreasonable.

Id.; see Finley, 531 F.3d at 294.

Although the district court must consider the Chapter


7 policy statements of the United States Sentencing Guidelines
Manual (USSG) and the requirements of 18 U.S.C. 3583(e),
the [district] court ultimately has broad discretion to revoke
its previous sentence and impose a term of imprisonment up to
the

statutory

quotation

maximum.

marks

and

Crudup,

citations

461

F.3d

omitted).

at

439

(internal

While

sentencing

court must provide sufficient explanation of the sentence to


allow

effective

review

court

need

robotically

not

subsection.

of

its

reasonableness
tick

through

on

appeal,

3553(a)s

the

every

United States v. Moulden, 478 F.3d 652, 657 (4th

Cir.

2007)

(probation

revocation)

United

(quoting

States

v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006)).


After reviewing the record, we find the district court
did not err in revoking Moores supervised release.

However, it

appears that the district court committed procedural error when


sentencing
Though
range

Moore

the
upon

upon

court

revocation

correctly

revocation

was

of

his

determined

supervised

twenty-one

that
to

Moores

release.
guideline

twenty-seven

months

imprisonment and sentenced Moore to the low end of that range,


the court entirely failed to provide any explanation for its
chosen

sentence,

range.

apart

from

noting

the

applicable

guideline

We have recently confirmed that the requirement that a

sentencing
equally

court

adequately

applicable

to

explain

sentences

its

imposed

2010 WL 624118, *2 (4th Cir. 2010).


to

be

as

upon

sentence

is

revocation

of

United States v. Thompson, ___ F.3d ___,

supervised release.

required

chosen

detailed

or

Though the court is not

specific

as

when

imposing

sentence following a criminal conviction, it still must provide


a statement of reasons for the sentence imposed.

Id. (quoting

Moulden, 478 F.3d at 657) (internal quotation marks omitted).


Here, the district court provided no explanation of
its

chosen

sentence.

Though

we

afford

great

deference

to

district courts imposing sentences, a district court may not


simply

impose

sentence

without
4

giving

any

indication

of

its

reasons

for

doing

Accordingly,

the

Thompson,

so.
district

courts

2010

WL

failure

624118
to

at

*2.

explain

its

sentence renders its sentence procedurally unreasonable.


However,
adequacy

of

the

because
district

reverse for plain error.

Moore
courts

failed

to

object

explanation,

we

to

the

will

only

See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).

Though we have

found that a defendant need only ask for a sentence outside the
range calculated by the court prior to sentencing in order to
preserve

his

claim

for

appellate

Thompson,

review,

2010

WL

624118 at *1, the record reflects that Moores attorney only


requested

that

his

supervised

release

not

be

revoked.

The

attorney made no request for a sentence within or outside of the


guideline

range.

Accordingly,

Moore

has

not

claim, and our review is for plain error.

preserved

his

Under plain error

review,
[A]n appellate court may correct an error not brought
to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4)
the
error
seriously
affects
the
fairness,
integrity,
or
public
reputation
of
judicial
proceedings.
United

States

v.

Carr,

303

F.3d

539,

543

(4th

Cir.

2002)

(internal quotation marks, citations, and alterations omitted).

Although

the

district

court

erred

in

failing

to

explain Moores sentence and the error is plain, we conclude


that this error did not affect Moores substantial rights.

In

the sentencing context, an error affects substantial rights if


the defendant can show that the sentence imposed was longer
than

that

States

to

v.

which

he

Washington,

would
404

otherwise

F.3d

834,

be
849

United

subject.
(4th

(internal quotation marks and citation omitted).

Cir.

2005)

Here, Moore

was sentenced at the low end of a correctly calculated guideline


range, and did not argue for a lower sentence.

Under these

circumstances, Moore cannot show that the sentence imposed by


the district court was longer than one to which he otherwise
would have been subjected had the court adequately conducted an
individualized assessment on the record.
Finally,
Moores

sentence.

Moores

sentence

we

turn

After
was

to

the

reviewing

substantively

substantive
the

record,

reasonable,

propriety
we

find

as

he

of
that
was

sentenced at the low end of the properly calculated guideline


range, this court affords a presumption of reasonableness to
such sentences, and Moore has not rebutted this presumption.
See Rita v. United States, 551 U.S. 338, 341, 347 (2007); United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

We have reviewed the entire record in accordance with


Anders
appeal.

and

have

not

identified

any

meritorious

issues

for

Accordingly, we affirm the district courts judgment.

This court requires counsel to inform his client, in writing, of


his right to petition the Supreme Court of the United States for
further
filed,

review.
but

frivolous,

If

counsel
counsel

representation.

the

client

believes
may

move

requests

that
in

such

this

that
a

court

petition

petition
to

would

withdraw

be
be

from

Counsels motion must state that a copy of the

motion was served on the client.

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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