United States v. Green, 4th Cir. (2010)
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Scribd Government DocsUnited States v. Green, 4th Cir. (2010)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLIE VAYSHONE GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:02-cr-00163-FDW-1)
Submitted:
May 26, 2010
Decided:
June 17, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charlie
Vayshone
Green
appeals
the
district
courts
order revoking his term of supervised release and imposing a
sentence of thirty-three and one-half months of imprisonment.
On
appeal,
California,
counsel
386
has
U.S.
filed
738
brief
(1967),
pursuant
stating
that,
to
Anders
in
his
v.
view,
there are no meritorious issues for appeal, but questioning, as
requested
by
Green,
whether
the
district
court
proceeded
improperly with the supervised release revocation hearing after
the state charges had been dismissed, whether the district court
abused its discretion in concluding that Green possessed crack
cocaine without a laboratory report confirming the identity of
the substance, whether the district court abused its discretion
in concluding that Green violated supervised release by failing
to
return
to
the
reentry
center,
whether
the
district
court
abused its discretion in failing to give advance notice that it
was contemplating a sentence above the Guidelines range, and
whether the district court abused its discretion in sentencing
Green to a term of imprisonment greater than the top of the
Guidelines
range.
essentially
repeats
In
his
the
pro
se
issues
Government declined to file a brief.
supplemental
raised
by
briefs,
counsel.
Green
The
We affirm.
This court reviews a district courts order imposing a
sentence after revocation of supervised release for abuse of
2
discretion.
United States v. Davis, 53 F.3d 638, 642-43 (4th
Cir. 1995).
The district court abuses its discretion when it
fails or refuses to exercise its discretion or when its exercise
of
discretion
premise.
is
flawed
by
an
erroneous
legal
or
factual
James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
In a revocation proceeding, findings of fact are made under a
preponderance-of-the-evidence,
rather
than
reasonable
doubt,
standard, the traditional rules of evidence are inapplicable,
and the full panoply of constitutional protections afforded a
criminal
defendant
is
not
available.
United
States
v.
Armstrong, 187 F.3d 392, 394 (4th Cir. 1999) (internal quotation
marks
and
sufficiency
citations
of
the
omitted).
evidence
faces
defendant
a
heavy
challenging
burden.
the
United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
In
determining whether the evidence in the record is substantial,
this court views the evidence in the light most favorable to the
government.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
proceeding
with
Greens claim that the district court erred in
the
revocation
hearing
after
the
state charges were dismissed is without merit.
review
of
concluded
the
record
convinces
us
that
Green
committed
the
that
properly revoked his supervised release.
the
alleged
underlying
Further, our
court
correctly
violations,
and
If
defendant
first
presents
his
sentencing
assignments of error to the district court or otherwise argues
for a sentence below the advisory policy statement sentencing
range calculated by the district court, this court reviews a
sentence
imposed
determine
after
whether
it
revocation
is
of
plainly
supervised
release
unreasonable.
to
United
States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010); United
States v. Crudup, 461 F.3d 433, 437-40 (4th Cir. 2006).
Green
preserved his claims by asserting that he was not given adequate
notice of the district courts intent to upwardly depart from
the Guidelines range, and by requesting a sentence within the
advisory
Guidelines
range
of
eighteen
to
twenty-four
months,
which was less than the sentence imposed by the district court.
The first step in the analysis is to determine whether
Crudup, 461 F.3d at 438.
the sentence was unreasonable.
conducting
this
review,
the
court
follows
generally
In
the
procedural and substantive considerations employed in reviewing
original sentences.
Id. at 438-39; see United States v. Finley,
531 F.3d 288, 294 (4th Cir. 2008) (In applying the plainly
unreasonable
standard,
we
first
determine,
using
the
instructions given in Gall [v. United States, 552 U.S. 38, 51
(2007)], whether a sentence is unreasonable.).
The district court commits procedural error if, for
example, it improperly calculates the advisory policy statement
4
sentencing range. Gall, 552 U.S. at 51.
In assessing whether
the district court properly applied the Guidelines, this court
reviews the district court's factual findings for clear error
and its legal conclusions de novo.
United States v. Osborne,
514 F.3d 377, 387 (4th Cir. 2008).
For mixed questions of law
and fact, the court applies a due deference standard of review.
Id.
Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence[,] procedural error also
occurs when the district court fails to adequately explain the
chosen
sentence
with
an
individualized
assessment.
United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal
quotation marks omitted).
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 citation and quotation marks omitted).
If, and only if, [the court] find[s] the sentence procedurally
reasonable can [it] consider the substantive reasonableness of
the
sentence
imposed
under
an
abuse-of-discretion
standard.
Carter, 564 F.3d at 328 (internal quotation marks and citations
omitted).
If the court concludes that a sentence is reasonable,
it should affirm the sentence.
Crudup, 461 F.3d at 439.
sentence
or
is
found
procedurally
5
substantively
If a
unreasonable,
however, this court must 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 and
the relevant requirements of 18 U.S.C.A. 3553(a), 3583 (West
2000 & Supp. 2009), the [district] court ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum.
439
(internal
quotation
marks
and
Crudup, 461 F.3d at
citations
omitted).
Our
review of the record leads us to conclude that the district
court
correctly
concluded
that
advance
notice
of
its
consideration of a sentence above the Guidelines range was not
required.
The
court
adequately
explained
its
sentence,
and
tailored that explanation to Greens individual circumstances.
The sentence imposed by the district court was reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We
therefore
affirm
the
district
Greens motion to transfer.
courts
judgment.
We
deny
This court requires that counsel
inform Green, in writing, of the right to petition the Supreme
Court
of
the
United
States
for
further
review.
If
Green
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.
Counsels
motion must state that a copy thereof was served on Green.
6
We dispense with oral argument because the facts and
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
