US v. Christopher Partlow

Filing 920100401

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4729 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER Christopher Wilson, MICHAEL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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 5

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