US v. Gary Terry

Filing 920090630

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4985

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. GARY IVAN TERRY, Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:03-cr-00299-NCT-1)

Submitted:

May 28, 2009

Decided:

June 30, 2009

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Stacey D. Rubain, QUANDER & RUBAIN, PA, Winston-Salem, North Carolina, for Appellant. Lisa Blue Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Gary Ivan Terry appeals from the district court's

order denying his motion to compel specific performance of the plea agreement in his underlying criminal case, revoking his supervised release, and imposing a seven-month prison term. appeal, Terry's 386 counsel U.S. filed a brief pursuant that to Anders are On v. no

California,

738

(1967),

stating

there

meritorious issues for appeal, but questioning the decision to revoke Terry's supervised release and the denial of his motion to compel. Although informed of his right to do so, Terry has After a thorough review

not filed a pro se supplemental brief. of the record, we affirm.

After considering the applicable 18 U.S.C. § 3553(a) (2006) factors, a district court may revoke a term of supervised release upon finding by a preponderance of the evidence that the defendant violated a condition of supervised release. § 3583(e)(3) (2006). 18 U.S.C.

Appellate courts review the decision to

revoke supervised release for an abuse of discretion and the factual findings and credibility determinations for clear error. See United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). After reviewing the evidence presented during the

hearing, we find that the district court did not clearly err in finding by a preponderance of the evidence that Terry failed to 2

make

the

monthly

court-ordered

restitution

payments,

opened

credit accounts without authorization, and failed to notify or permit the probation officer to notify his employer of third party risks that may be occasioned by Terry's criminal record, personal history, or characteristics. court did not abuse its discretion Accordingly, the district in finding that Terry

violated the conditions of his supervised release. We will affirm a sentence imposed after revocation of supervised release if it is within the applicable statutory

maximum and is not plainly unreasonable.

See United States v. We first

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

review the sentence for unreasonableness, "follow[ing] generally the procedural and substantive considerations that we employ in our review of original sentences, . . . with some necessary modifications to take into account the unique nature of

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 and to sentence considered the 18 is the we "decide whether the

substantively

unreasonable

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

district statement permitted

Seven

policy it is 3

U.S.C. in a

§ 3553(a)

factors

consider

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.

Addressing the § 3553(a) factors as applied to Terry's circumstances, the district court expressed a need for the

sentence to deter others from similar conduct, but noted Terry's firm belief that his conviction was improper. imposed a sentence of seven months The court then with no

imprisonment

additional term of supervised release.

We find that Terry's

sentence was not "plainly unreasonable" because it was within the recommended Guidelines range of 3 to 9 months, well below the 17-month maximum term that the court could have imposed, and 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 found no meritorious issues for appeal. Accordingly, we deny Terry's motion to place the case in This

abeyance, and we affirm the district court's judgment.

court requires that counsel inform Terry, in writing, of his right to petition the Supreme Court of the United States for 4

further review.

If Terry 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 the are and adequately argument presented not in aid the the

was served on Terry. facts and legal before

contentions the court

materials

would

decisional process. AFFIRMED

5