US v. Kim Prater

Filing 920090327

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4294

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. KIM A. PRATER, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:01-cr-00018-jpj-1; 1:03-cr-00075-jpj-1)

Submitted:

March 10, 2009

Decided:

March 27, 2009

Before TRAXLER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian K. Miller, LAW OFFICES OF BRIAN K. MILLER, P.C., Richmond, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Randy Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Kim A. Prater appeals the district court's order

revoking his supervised release and sentencing him to sixty-six months' imprisonment. error. Accordingly, We have reviewed the record and find no we deny his motion to file a pro se

supplemental brief and affirm. Prater was originally found guilty of ten counts of filing false claims with the Internal Revenue Service; however, after Prater two was substantial sentenced assistance to only motions by the Government,

eighteen

months'

imprisonment.

Prater was also convicted of failing to surrender for service of sentence and sentenced to an additional four months'

imprisonment.

Prater was sentenced to a period of supervised He began his supervised release

release for both convictions. on February 14, 2005.

Prater's probation officer filed a supervised release violation report that alleged sixteen separate violations. At

the revocation hearing, the district court found that Prater committed each of the alleged violations and revoked his

supervised release.

The district court then sentenced Prater to

six months' imprisonment on each of the ten false claim counts and an additional six months' imprisonment on his failure to surrender conviction, all to run consecutively. On appeal,

Prater contends that his sentence was plainly unreasonable. 2

This court reviews a sentence imposed as a result of a supervised release violation to determine whether the sentence was plainly unreasonable. 433, 438 (4th Cir. 2006). United States v. Crudup, 461 F.3d The first step in this analysis is Id. This court, in

whether the sentence was unreasonable.

determining reasonableness, follows generally the procedural and substantive sentences. considerations Id. employed in reviewing original

If a sentence imposed after a revocation is not

unreasonable, this court will not proceed to the second prong of the analysis - whether the sentence was plainly unreasonable. Id. at 439. Although a district court must consider the policy

statements in Chapter Seven of the sentencing guidelines along with the statutory requirements of 18 U.S.C. § 3583 (2006) and 18 U.S.C. § 3553(a) (2006), the district court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum. Crudup, 461

F.3d at 439 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005)). On review, this court will assume a

deferential appellate posture concerning issues of fact and the exercise of discretion. Prater unreasonable Id. that his sentence failed to was prove plainly that he

argues the

because

Government

obtained property by false pretenses. 3

Prater contends that any

representation that occurred in the transactions was as to a future event, and Virginia law requires a misrepresentation of a present or past fact. Even assuming that Prater is correct, the

evidence in the record is more than sufficient to establish by a preponderance of the evidence that Prater made false See 18 of

representations at the time he received the property. U.S.C. § 3583(e)(3) (2006) (providing that a

violation

supervised release need only be proven by a preponderance of the evidence). evidence release. Prater's sentence was also substantively reasonable. Upon revocation sentence of of his supervised release, Prater faced a to The district court did not err in relying on this establish that Prater violated his supervised

possible

twenty-two

years'

imprisonment.

Prater

admitted to multiple violations of the terms of his supervised release. Moreover, after receiving the benefit of two

substantial assistance departures, Prater continued to engage in financial crimes that defrauded innocent third parties. We thus

conclude the district court did not err in sentencing Prater. Accordingly, supplemental court. we deny and Prater's affirm motion the to file of a the pro se

brief

judgment

district

We dispense with oral argument as the facts and legal of the parties are adequately presented in the

contentions

4

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

5