US v. Ricky Moore

Filing 920100416

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4637

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICKY MOORE, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:98-cr-00183-JAB-3)

Submitted:

March 30, 2010

Decided:

April 16, 2010

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

Affirmed by unpublished per curiam opinion.

Brian M. Aus, Durham, 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Unpublished opinions are not binding precedent in this circuit.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: Ricky Moore appeals the district court's revocation of his supervised release and the twenty-one month sentence imposed upon revocation. to Anders v. Appellate counsel has filed a brief pursuant 386 U.S. 738 (1967), questioning

California,

whether the district court erred in revoking Moore's supervised release and sentencing Moore to twenty-one months' imprisonment, but concluding there are no meritorious grounds for appeal.

Moore did not file a pro se supplemental brief despite being informed of his right to do so, and the Government elected not to file a brief. 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). We review for such factual error. 18 U.S.C. and

findings See

credibility

determinations

clear

United

States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). 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).

assess the sentence for unreasonableness, "follow[ing] generally the procedural and substantive considerations that we employ in 2

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; see

United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) ("In applying determine, States, the `plainly the unreasonable' given standard, in Gall a we [v. first United is not

using

instructions 38 If (2007)], we

552

U.S.

whether that a

sentence is

`unreasonable.'").

conclude

sentence

unreasonable, we will affirm the sentence. 439.

Crudup, 461 F.3d at

Only if a sentence is found procedurally or substantively

unreasonable will we "decide whether the sentence is plainly unreasonable." Id.; see Finley, 531 F.3d at 294.

Although the district court must consider the Chapter 7 policy statements of the United States Sentencing Guidelines Manual ("USSG") and the requirements of 18 U.S.C. § 3583(e), "the [district] court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum." and Crudup, 461 F.3d at 439 a (internal sentencing

quotation

marks

citations

omitted).

While

court must provide sufficient explanation of the sentence to allow court effective need not review of its reasonableness tick through on appeal, the

"`robotically

§ 3553(a)'s

every

subsection.'"

United States v. Moulden, 478 F.3d 652, 657 (4th

3

Cir.

2007)

(probation

revocation)

(quoting

United

States

v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006)). After reviewing the record, we find the district court did not err in revoking Moore's supervised release. However, it

appears that the district court committed procedural error when sentencing Though range the upon Moore court upon revocation of his supervised Moore's release. guideline months'

correctly was

determined twenty-one

that to

revocation

twenty-seven

imprisonment and sentenced Moore to the low end of that range, the court entirely failed to provide any explanation for its chosen range. sentence, apart from noting the applicable guideline

We have recently confirmed that the requirement that a court adequately to explain its chosen upon sentence revocation is of

sentencing equally

applicable

sentences

imposed

supervised release.

United States v. Thompson, ___ F.3d ___, Though the court is not as when imposing a

2010 WL 624118, *2 (4th Cir. 2010). required to be as detailed or

specific

sentence following a criminal conviction, "it still must provide a statement of reasons for the sentence imposed." Id. (quoting

Moulden, 478 F.3d at 657) (internal quotation marks omitted). Here, the district court provided no explanation of its chosen sentence. Though we afford great deference to

district courts imposing sentences, "a district court may not simply impose sentence without 4 giving any indication of its

reasons

for

doing the

so." district

Thompson, court's

2010

WL

624118 to

at

*2. its

Accordingly,

failure

explain

sentence renders its sentence procedurally unreasonable. However, adequacy of the because district Moore court's failed to object we to the only

explanation,

will

reverse for plain error.

See Fed. R. Crim. P. 52(b); United Though we have

States v. Olano, 507 U.S. 725, 731-32 (1993).

found that "a defendant need only ask for a sentence outside the range calculated by the court prior to sentencing in order to preserve his claim for appellate review," Thompson, 2010 WL

624118 at *1, the record reflects that Moore's attorney only requested that his supervised release not be revoked. The

attorney made no request for a sentence within or outside of the guideline range. Accordingly, Moore has not preserved his

claim, and our review is for plain error. review,

Under plain error

[A]n appellate court may correct an error not brought to the attention of the trial court if (1) there is an error (2) that is plain and (3) that affects substantial rights. If all three of these conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)

(internal quotation marks, citations, and alterations omitted).

5

Although

the

district

court

erred

in

failing

to

explain Moore's sentence and the error is plain, we conclude that this error did not affect Moore's substantial rights. In

the sentencing context, an error affects substantial rights if the defendant can show that the sentence imposed "was longer than that v. to which he would 404 otherwise 834, be 849 subject." (4th Cir. United 2005)

States

Washington,

F.3d

(internal quotation marks and citation omitted).

Here, Moore

was sentenced at the low end of a correctly calculated guideline range, and did not argue for a lower sentence. Under these

circumstances, Moore cannot show that the sentence imposed by the district court was longer than one to which he otherwise would have been subjected had the court adequately conducted an individualized assessment on the record. Finally, Moore's Moore's sentence. sentence we turn to the substantive the record, propriety we find he of that was

After was

reviewing

substantively

reasonable,

as

sentenced at the low end of the properly calculated guideline range, this court affords a presumption of reasonableness to such sentences, and Moore has not rebutted this presumption. See Rita v. United States, 551 U.S. 338, 341, 347 (2007); United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

6

We have reviewed the entire record in accordance with Anders appeal. and have not identified any meritorious issues for

Accordingly, we affirm the district court's judgment.

This court requires counsel to inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If the client requests such a that a petition would be be

counsel counsel

believes may move

that in

petition to

frivolous,

this

court

withdraw

from

representation.

Counsel's motion must state that a copy of the We dispense with oral argument

motion was served on the client.

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

7