US v. Christopher Partlow

Filing 920100401

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4729

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER Christopher Wilson, MICHAEL Wilson, PARTLOW, a/k/a Chris Partlow, a/k/a a/k/a Chubby Partlow, a/k/a Chubby

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:97-cr-00184-FDW-19)

Submitted:

March 18, 2010

Decided:

April 1, 2010

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Matthew R. Segal, Asheville, North Carolina, Elizabeth A. Blackwood, Research and Writing Attorney, Charlotte, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Christopher Michael Partlow appeals the district

court's order revoking his supervised release and sentencing him to fifteen months' release. imprisonment On appeal, and Partlow ninety-six contends months' that the

supervised

district court's sentence was procedurally unreasonable, as it was based on two not erroneous punitive in premises: nature, (1) and that supervised lowering

release

was

(2)

that

Partlow's term of supervised release would create an unwarranted disparity, as such reductions were not available to defendants who did not violate their supervised release terms. Generally, we will affirm a sentence We affirm. imposed after

revocation of supervised release if it is within the applicable statutory maximum and is not plainly unreasonable. See United

States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). However, here, after the district court explained the sentence it intended to impose, it specifically asked counsel whether they saw any legal reason why the sentence could not be imposed. Though Partlow's counsel thus had the opportunity to object to the district court's explanation of the basis for its proposed sentence, they failed to do so. plain error. Accordingly, our review is for

Fed. R. Crim. P. 52(b); United States v. White, To establish plain error,

405 F.3d 208, 215 (4th Cir. 2005).

2

Partlow must show that:

(i) an error occurred; (ii) the error

is plain; and (iii) the error affected his substantial rights. See United States v. Smith, 441 F.3d 254, 271 (4th Cir. 2006). An error affects substantial rights if it was so prejudicial as to affect the outcome of the proceedings. McClung, 483 F.3d 273, 276 (4th Cir. 2007). United States v. Even if Partlow can

establish plain error, however, correction of the error remains within our discretion and should not be exercised unless the error seriously affects the fairness, Id. integrity, or public

reputation of judicial proceedings.

Here, we find that Partlow's first assignment of error is without merit. court mistakenly Though Partlow contends that the district believed that supervised release was not a

punishment, this contention is belied by the record.

Instead,

the district court correctly recognized that supervised release had both punitive and rehabilitative aspects, and was therefore not wholly punitive Indeed, in the the manner described by Partlow's of the the

counsel.

district behind

court's

notation

"transitional"

purposes

supervised

release

mirrors

congressional intent previously recognized by the Supreme Court: "Congress intended supervised release to assist individuals in their transition to community life. rehabilitative ends, distinct Supervised release fulfills from those served by

3

incarceration." (2000). procedural

United

States the

v.

Johnson, court

529 did

U.S. not

53,

59

Accordingly, error in

district the

commit of

noting

rehabilitative

aspects

supervised release. Partlow next contends that the district court erred in noting that it that sought might to avoid if it unwarranted changed the sentencing supervised

disparities

arise

release terms for violators, while those individuals who did not violate were forced to serve the full length of their term. Partlow argues that, as the district court failed to recognize that an individual under a term of supervised release may seek a reduction supervised in his term after the expiration of of one law year of

release,

this

misstatement

the

rendered

Partlow's sentence procedurally unreasonable. However, account for even if the district court law did in not fully

applicable

supervised

release

evaluating

Partlow's argument, Partlow fails to demonstrate that any error affected his substantial rights. The district court listed

numerous reasons for imposing the sentence it did, including the nature of the crimes committed, the need for deterrence, and the need to protect the public. Accordingly, because Partlow fails

to demonstrate that his substantial rights were affected by this alleged error, we find his argument unavailing.

4

Therefore, court. legal before

we

affirm

the

judgment

of

the

district

We dispense with oral argument because the facts and contentions the court are and adequately argument expressed not in the the materials decisional

would

aid

process. AFFIRMED

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