US v. Michael Smith

Filing 920100422

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4961 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (4:95-cr-00057-F-4) Submitted: April 12, 2010 Decided: April 22, 2010 Before WILKINSON, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Smith appeals the district court's order revoking his supervised release and sentencing him to twenty-six months in prison. We affirm. I Smith was convicted of a drug offense in 1995 and was sentenced to ninety months in prison, to be followed by a fiveyear term of supervised release. release commenced in December 2001. revoked. be Smith's term of supervised In 2005, his release was He was sentenced to twenty-four months in prison, to by thirty-six months of supervised release. In followed 2007, Smith's release was again revoked, and he was sentenced to ten months in prison, to be followed by twenty-six months of supervised release. Smith's most recent term of release began in January 2008. In July 2009, his probation officer moved to revoke his Smith admitted two of the release based on three violations. violations. The district court heard evidence on the third, The court concluded that Smith as to charged. twenty-six The court in which charged criminal conduct. had committed the three violations him revoked prison. release and sentenced months In sentencing Smith, the court stated: 2 The court has considered the policy statements on revocations contained in Chapter Seven of [the] U.S. Sentencing Guidelines. Smith's performance under the most recent term of supervision has been marginal at best. The motion for revocation clearly documents a history of substantial noncompliance and frequent violation conduct. Smith has historically shown some promise early in the supervision process, but he inevitably reverts to behavior indicative of an unmotivated, careless lifestyle. By his very nature, he is a reckless and impulsive individual. This behavior coupled with the likelihood of drug and/or alcohol abuse presents serious danger to the community. In view thereof, a sentence of twenty-six months is appropriate. . . . This was a Grade B violation, criminal history category II, with a custody range of six to twelve months. The court has departed upwardly for the reasons heretofore indicated inasmuch as the sentence will allow the defendant to receive intensive substance abuse treatment while incarcerated, which the court recommends. II We will affirm a sentence imposed after revocation of supervised release if it is within the applicable statutory maximum and not plainly unreasonable. 461 F.3d 433, 439-40 (4th Cir. United States v. Crudup, We first determine 2006). whether the sentence is unreasonable, following generally the model United for reviewing 552 to original U.S. 38 sentences (2007), account set forth in Gall v. States, "with the some necessary nature of modifications take into unique 3 supervised release revocation sentences." 438-39. A procedurally Chapter sentence imposed if upon Crudup, 461 F.3d at revocation court 18 of release is the reasonable policy the district and the considered Seven statements U.S.C. 3553(a) (2006) factors that it is permitted to consider. 3583(e); Crudup, 461 F.3d at 438-40. factors are: See 18 U.S.C. The relevant 3553(a) "the nature and circumstances of the offense and the history and characteristics of the defendant," 3553(a)(1), and the need for the sentence "to afford adequate deterrence to criminal conduct, . . . protect the public from further crimes of the defendant, . . . [and] provide the defendant with needed educational correctional or vocational in training, the most medical effective care, or . other . ." treatment manner. 3553(a)(2)(B)-(D). A sentence imposed upon revocation of release is substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory maximum. at 440. Only if we find a sentence Crudup, 461 F.3d procedurally or substantively unreasonable will we consider whether the sentence is plainly unreasonable. Id. 4 III We conclude that Smith's sentence, which falls within the statutory maximum, The is not procedurally or substantively the Chapter 7 unreasonable. district court considered policy statements and relevant 3553(a) factors and adequately explained its reasons for the sentence. We therefore affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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