US v. Walter Vaughan

Filing 920090326

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4517 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WALTER DEANGELO VAUGHAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:98-cr-00219-REP-l) Submitted: February 23, 2009 Decided: March 26, 2009 Before TRAXLER, DUNCAN, and AGEE, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Valencia Roberts-Brower, Assistant Federal Public Defenders, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, S. David Schiller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Walter D. Vaughan pled guilty in March 1999 to being a drug user in possession of a firearm, 18 U.S.C. 922(g)(3) (2006), and to two counts of misdemeanor possession of marijuana and cocaine, 21 U.S.C. 844 (2006). He was sentenced to fifteen months on the firearms offense and twelve months on each of the drug offenses, followed by a term of supervised release. In April 2008, the district court revoked Vaughan's supervised release and imposed a twenty-four month sentence, followed by an additional appeals. Vaughan first claims that the twenty-four month We of two-year term of supervised release. Vaughan sentence imposed by the district court was unreasonable. will affirm a sentence if it imposed is within following the revocation supervised range and release is not F.3d prescribed United 2006). statutory States While v. the "plainly 433, unreasonable." (4th Cir. Crudup, 461 437-39 district court must consider the Chapter 7 policy statements and statutory requirements and factors applicable to revocation sentences under 18 U.S.C. 3553(a), 3583 (2006), the district court ultimately has "broad discretion" to revoke the previous sentence and impose a term of imprisonment up to the statutory maximum. Crudup, 461 F.3d at 439 (citation omitted). 2 We have reviewed the record and find that the district court's sentence, although beyond the advisory guidelines range, was not unreasonable. guidelines provided a range proper and The the court implicitly considered factors, the and applicable for imposing 3553(a) the basis statutory maximum sentence; namely, the number and type of violations occurring within a short time after Vaughan began serving his original term of supervised release. Accordingly, we affirm as to the twenty-four month sentence of imprisonment. Vaughan also claims that the district court erred by imposing an additional term of supervised release following the sentence of imprisonment. Because he did not object at sentencing as to this aspect of the district court's judgment, our review is for plain error. F.3d 336 (4th of Cir. 2002). United States v. Maxwell, 285 Post-revocation are treated penalties as part for violations supervised release of the penalty for the original conviction. 529 U.S. 694, 700-702 (2000). Johnson v. United States, Thus, the penalties that can be imposed for revocation relate back to the date of the original offense. The version of 18 U.S.C. 3583(h) in effect on the date Vaughan committed the underlying offense read: term of supervised release is revoked and the "[w]hen a is defendant required to serve a term of imprisonment that is less than the 3 maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment." 3583(h) (1998). effect at the time 18 U.S.C. Thus, the plain language of 3583(h) in Vaughan of committed supervised his underlying only offense if the permitted reimposition release district court imposed less than the maximum prison term for his supervised release violation. Because Vaughan received the statutory maximum term of imprisonment for violating his supervised release, the imposition of an additional two-year term of supervised release was plain error 285 that at affected 342. his substantial we rights. exercise See our Maxwell, F.3d Accordingly, discretion to correct the error. U.S. 725, 736 (1993). United States v. Olano, 507 We vacate this portion of the district court's order and remand for further proceedings consistent with this opinion. We dispense with oral argument because the facts and legal contentions are adequately addressed in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 4

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