US v. Gary Kirkpatrick

Filing 920100420

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4194 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GARY ALLEN KIRKPATRICK, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Lacy H. Thornburg, District Judge. (2:03-cr-00017-LHT-1) Submitted: April 9, 2010 Decided: April 20, 2010 Before MOTZ and Circuit Judge. KING, Circuit Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Ross H. Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Don D. Gast, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Allen Kirkpatrick appeals the district court's judgment revoking his supervised release and sentencing him to twenty-four months in prison. On appeal, Kirkpatrick contends We affirm. that his sentence is plainly unreasonable. We will affirm a sentence imposed after revocation of supervised release if it is within the prescribed statutory range and not plainly unreasonable. 461 F.3d 433, 439-40 (4th Cir. 2006). United States v. Crudup, We first consider whether Id. the sentence is procedurally or substantively unreasonable. at 438. In this initial inquiry, we take a more deferential posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences. United Only if States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). we find the sentence procedurally or substantively unreasonable must we decide whether it is "plainly" so. Id. at 657. While a district court must consider the Chapter Seven policy statements and the statutory factors applicable to revocation sentences under 18 U.S.C. 3553(a), 3583(e) (2006), the court need not robotically tick through every subsection, and ultimately, the court has broad discretion to revoke the previous sentence and impose a term of imprisonment up to the statutory maximum. Id. at 656-57. Moreover, while a district court must provide a statement of reasons for the sentence, the 2 court need not be as detailed or specific when imposing a revocation sentence as when imposing a post-conviction sentence. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). On appeal, Kirkpatrick does not challenge the district court's findings that he willfully violated the terms of his supervised release in the manner set forth in the revocation petition, lied at the revocation hearing about the violations, and refused to cooperate with custodial authorities; nor does he challenge the revocation of his supervised release. Rather, he contends that in imposing the statutory maximum 24-month prison term, the district court failed to carefully consider and weigh the required factors under 18 U.S.C. 3553(a), 3583 (2006) in accordance with our decision in Crudup. We disagree. The district court explained its decision to reject the Chapter Seven policy statement range and impose a 24-month sentence hearing was and based his on Kirkpatrick's behavior as perjury in in court the at the past indicated violation report and the testimony of the supervising probation officer. Kirkpatrick not only violated the conditions of his supervised release by possessing a knife and lying about it to the probation officer, but he also threatened three people with the knife and to then lied to the district custodial court. He furthermore and other refused cooperate with authorities individuals assigned to supervise or assist him. 3 The district court's explanation indicated its consideration of the nature and circumstances of and Kirkpatrick's the need for offense, the his history to and characteristics, sentence afford adequate deterrence to criminal conduct. Thus, we conclude that the sentence is procedurally and substantively reasonable. We therefore affirm the district court's judgment. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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