US v. Thelbert Grainger, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:02-cr-00037-F-1. Copies to all parties and the district court/agency. [998526781] [09-4879]

Case: 09-4879

Document: 24

Date Filed: 02/17/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4879

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THELBERT GRAINGER, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:02-cr-00037-F-1)

Submitted:

January 27, 2011

Decided:

February 17, 2011

Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 09-4879

Document: 24

Date Filed: 02/17/2011

Page: 2

PER CURIAM:
Thelbert Grainger, Jr., appeals the district court’s
judgment revoking supervised release and imposing a twenty-four
month sentence.

We affirm.

Grainger pled guilty to one count of false statement
to

a

firearms

dealer

during

acquisition

of

a

firearm

violation of 18 U.S.C. § 922(a)(6) (2000) in 2002.
sentenced

to

87

months’

imprisonment

months’ supervised release.
on January 13, 2009.
characterized

by

to

be

in

He was

followed

by

36

His term of supervision commenced

His short tenure of supervised release was

significant

violations,

including

testing

positive for marijuana, failing to pay court-imposed fines, and
absconding from supervision.

The Probation Office ultimately

petitioned the district court for revocation.
the

court

violations
advisory
appeal,

found
and

that

imposed

Guidelines
Grainger

Grainger
a

range

argues

had

six

twenty-four
was

that

seven
the

to

After a hearing,

supervised

month

sentence.

thirteen

twenty-four

release

months.

month

His
On

sentence

imposed by the district court was plainly unreasonable.

We do

not agree.
This court reviews the district court’s revocation of
supervised release for an abuse of discretion.
Pregent, 190 F.3d 279, 282 (4th Cir. 1999).

United States v.

A sentence imposed

after revocation of supervised release should be affirmed if it
2

Case: 09-4879

Document: 24

Date Filed: 02/17/2011

Page: 3

is within the applicable statutory maximum and is not plainly
unreasonable.

United States v. Crudup, 461 F.3d 433, 437, 439-

40 (4th Cir. 2006).
reasonableness,

This court first reviews the sentence for

“follow[ing]

generally

the

procedural

and

substantive considerations that [are] employ[ed] in [the] review
of original sentences, . . . with some necessary modifications
to take into account the unique nature of supervised release
revocation
Finley,

sentences.”

531

F.3d

Id.

288,

294

at

438-39;

see

(4th Cir. 2008)

United
(“In

States

applying

v.
the

‘plainly unreasonable’ standard, we first determine, using the
instructions

given

in

Gall

[v.

United

States,

552

U.S.

38

(2007)], whether a sentence is ‘unreasonable.’”).
Although the district court must consider the Chapter
7

policy

statements

and

the

requirements

of

§ 3553(a)

and

§ 3583, “the sentencing court retains broad discretion to revoke
a defendant’s probation [or supervised release] and impose a
term

of

imprisonment

up

to

the

statutory

maximum.”

United

States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (citing
Crudup, 461 F.3d at 439).

In this case, the statutory maximum

revocation sentence was two years’ imprisonment.
A

sentence

is

reviewed

for

reasonableness

under

abuse of discretion standard.

Gall, 552 U.S. at 51.

review

of

requires

substantive

consideration

reasonableness

of

a
3

both

the

sentence.

This

procedural
Id.;

see

an

and

United

Case: 09-4879

States

v.

Document: 24

Lynn,

592

F.3d

Date Filed: 02/17/2011

572,

575

Page: 4

(4th Cir. 2010).

After

determining whether the district court properly calculated the
defendant’s
whether

advisory

the

analyzed

Guideline

district

the

court

arguments

range,

this

considered
presented

court

the
by

must

§ 3553(a)
the

sufficiently explained the selected sentence.

decide

factors,

parties,

and

Lynn, 592 F.3d at

575-76; see United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009).

Properly

preserved

claims

subject to harmless error review.
the

sentence

is

free

of

of

error

are

Lynn, 592 F.3d at 576.

If

significant

procedural

procedural

error,

the

appellate court reviews the substantive reasonableness of the
Id. at 575; United States v. Pauley, 511 F.3d 468,

sentence.

473 (4th Cir. 2007).
Grainger neither objected to his sentence, nor did he
request a sentence different in duration or manner from that
which

he

received.

Accordingly,

review is for plain error.

our

initial

reasonableness

Lynn, 592 F.3d at 577.

To establish

plain error, “[Grainger] must show that an error occurred, that
the error was plain, and that the error affected his substantial
rights.”

United

States

v.

Muhammad,

478

F.3d

247,

249

(4th Cir. 2007).

Even if Grainger satisfies these requirements,

“correction

the

of

error

remains

within

[the

court’s]

discretion, which [the court] should not exercise . . . unless
the error seriously affect[s] the fairness, integrity or public
4

Case: 09-4879

Document: 24

Date Filed: 02/17/2011

reputation of judicial proceedings.”

Page: 5

Id. (internal quotation

marks and citation omitted).
With regard to Grainger’s claim that the court did not
provide an adequate explanation of his sentence and should have
further

considered

the

Chapter

7

policy

statements

and

the

§ 3553(a) factors, we have reviewed the record and we do not
agree.

The district court clearly discussed Grainger’s lengthy

criminal history, the seriousness of his violations, and the
need

for

conclude

Grainger
that

the

Consequently,

we

to

receive

court
need

did

not

substance
not

decide

err,

abuse
let

treatment.

alone

whether

the

We

plainly

so.

sentence

was

plainly procedurally unreasonable within the meaning of Crudup.
Grainger
reasonableness

of

also
his

challenges

sentence.

We

the
again

substantive

note

the

broad

discretion afforded to district courts in imposing a sentence
within

the

release.

statutory

maximum

on

violations

of

supervised

In light of this discretion, and after review of the

record, we conclude that the sentence imposed was substantively
reasonable.

Again, we need not reach the issue of whether it

was plainly unreasonable.
Accordingly, we affirm the judgment of the district
court.
legal

We dispense with oral argument because the facts and
contentions

are

adequately

5

presented

in

the

materials

Case: 09-4879

before

the

court

Document: 24

and

Date Filed: 02/17/2011

argument

would

not

aid

Page: 6

the

decisional

process.
AFFIRMED

6