US v. Joseph Bowden

Filing 920090713

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4781

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DAVID BOWDEN, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Jr., District Judge. (1:99-cr-317-1)

Submitted:

June 29, 2009

Decided:

July 13, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North Carolina, for Appellant. Frank Joseph Chut, Jr., Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Joseph Bowden appeals from the district court's

judgment revoking his supervised release and imposing a tenmonth sentence. On appeal, Bowden's counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating there are no meritorious issues for appeal, but questioning the decision to revoke Bowden's supervised release and the

reasonableness of the sentence imposed.

Although informed of

his right to do so, Bowden has not filed a pro se supplemental brief. After a thorough review of the record, we affirm. We review the district court's revocation of

supervised release for abuse of discretion. Pregent, 190 F.3d 279, 282 (4th Cir. 1999).

United States v. The district court

need only find a violation of a condition of supervised release by a preponderance of the evidence. (2006). We review for clear error 18 U.S.C. § 3583(e)(3) factual determinations United

underlying the conclusion that a violation occurred.

States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003); United States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996). After

reviewing the record, we find the district court did not abuse its discretion in determining by a preponderance of the evidence that Bowden violated the terms of his supervised release. We will affirm a sentence imposed after revocation of supervised release if it is within 2 the prescribed statutory

range and not plainly unreasonable.

United States v. Crudup, We first assesses the generally the

461 F.3d 433, 439-40 (4th Cir. 2006). sentence for unreasonableness,

"follow[ing]

procedural and substantive considerations that we employ in our review of original to take sentences, into . . . with the some necessary nature of

modifications

account

unique

supervised release revocation sentences."

Id. at 438-39.

If we

conclude that a sentence is not unreasonable, we will affirm the sentence. or Id. at 439. Only if a sentence is found procedurally will Id. revocation court sentence considered is the we "decide whether the

substantively

unreasonable

sentence is plainly unreasonable." A procedurally supervised reasonable if release the

district

Chapter Seven advisory policy statement range and the 18 U.S.C. § 3553(a) (2006) factors that it is permitted to consider in a supervised release revocation case. Crudup, 461 F.3d if the at 440. Such court a See 18 U.S.C. § 3583(e); sentence a is substantively basis for

reasonable

district

stated

proper

concluding the defendant should receive the sentence imposed, up to the statutory maximum. is plainly unreasonable Id. at 439. Crudup, 461 F.3d at 440. if it is clearly or A sentence obviously

unreasonable.

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While

the

district

court

mentioned

the

§

3553(a)

factors and noted Bowden's previous criminal history of credit card fraud and his continuing violations of the terms of his probation/release, it did not provide any further explanation for why it imposed a ten-month sentence or what sentencing

factors it considered.

Thus, the sentence is at least arguably However, we not "plainly

both substantively and procedurally unreasonable. easily conclude that Bowden's sentence was

unreasonable" because the sentence was within the recommended policy statement range and under the statutory maximum.

Moreover, the record does not contain any basis on which to conclude that the imposed sentence is clearly or obviously

unreasonable. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment.

This court requires that counsel inform Bowden, in writing, of his right to petition the Supreme Court of the United States for further review. If Bowden 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. Counsel's motion must state that a copy thereof We dispense with oral argument because

was served on Bowden.

the facts and legal contentions are adequately presented in the 4

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

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