US v. Clarence Burgess

Filing 920090515

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4857

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. CLARENCE BURGESS, Defendant ­ Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:05-cr-00142-1)

Submitted:

April 22, 2009

Decided:

May 15, 2009

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Christian M. Capece, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Karen B. Schommer, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Clarence conspiracy to Burgess pled guilty to one and count of

possess,

manufacture,

pass,

utter

false

instruments, in violation of 18 U.S.C.A. § 371 (West 2004), and was sentenced in November 2005 to ten months' imprisonment

followed by three years of supervised release. the district court revoked Burgess'

In August 2008, release and

supervised

sentenced him to twenty-four months' imprisonment.

On appeal,

Burgess contends that his twenty-four month prison sentence is plainly unreasonable because it does not further the purposes of supervised release. A release statutory Finding no error, we affirm. imposed if not after it revocation is within of the supervised applicable United In

sentence be

will

affirmed and is

maximum

plainly

unreasonable.

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

determining whether a sentence is "plainly unreasonable," this court first assesses whether the sentence is procedurally and substantively reasonable. Id. at 438. In evaluating the

reasonableness of a revocation sentence, this court views issues of fact and the district court's exercise of discretion with deference. to revoke Id. at 439. its previous A district court has broad discretion sentence and impose Id. going a term of

imprisonment up to the statutory maximum. district court's statement of 2 reasons for

Moreover, a beyond the

Guidelines' non-binding policy statement "in imposing a sentence after revoking a defendant's supervised release need not be as specific guidelines mandatory." as has that been were, required before when courts departed to from be

Booker,

considered

Id. at 439 (quoting United States v. Lewis, 424

F.3d 239, 245 (2d Cir. 2005)). A sentence is procedurally reasonable if the district court considered the Sentencing Guidelines' Chapter Seven policy statements (2006). and See the pertinent 461 factors F.3d in 18 440. U.S.C. A § 3553(a) is

Crudup,

at

sentence

substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive the

sentence imposed, up to the statutory maximum.

See id.

Only if

a sentence is found procedurally or substantively unreasonable will this court "then decide whether the sentence is plainly unreasonable." Id. at 439.

In this case, it is undisputed that Burgess' twentyfour month prison sentence falls within the applicable statutory maximum sentence of two years' imprisonment. §§ 371, 3583(e)(3), 3559(a) (West 2006). See 18 U.S.C.A.

Additionally, Burgess

does not dispute that the district court properly calculated and considered the Guidelines' policy statement range of three to nine months' imprisonment. Further, Burgess does not assert

3

that

the

district

court

failed

to

consider

any

pertinent

sentencing factor under § 3553(a). Moreover, proper range basis for the its by district to court sufficiently Burgess stated above a

decision the

sentence The

the

recommended

Guidelines.

district

court's

comments at the revocation hearing indicate that it imposed a sentence above the advisory policy statement range as a result of Burgess' repeated breaches of trust following instances of leniency. See USSG Ch. 7, Pt. A, intro cmt. 3(b) ("[A]t

revocation the court should sanction primarily the defendant's breach of trust."); see also Crudup, 461 F.3d at 440 (affirming the imposition had of the statutory violated on maximum numerous broad sentence when of the his a

appellant supervised

repeatedly

conditions discretion

release).

Based

the

that

district court has to revoke a term of supervised release and impose a prison term up to and including the statutory maximum, Burgess' sentence is not unreasonable. Therefore, we find that See Crudup, 461

Burgess' sentence is not plainly unreasonable. F.3d at 438-39.

Accordingly, we affirm the district court's judgment revoking Burgess' supervised release and imposing a twenty-four month prison term. facts and legal We dispense with oral argument because the are adequately presented in the

contentions

4

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

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