US v. Kelvin Walker

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:92-cr-00053-F-9. Copies to all parties and the district court/agency. [998457498] [09-5095]

US v. Kelvin Walker

Doc. 0

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Date Filed: 11/02/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5095 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KELVIN DEMETRIUS WALKER, a/k/a Tweet, a/k/a Tweety, a/k/a Derek Fenty, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:92-cr-00053-F-9) Submitted: September 30, 2010 Decided: November 2, 2010

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Kelvin Demetrius Walker appeals the twenty-four-month sentence release. imposed Walker upon revocation on of his term his of supervised is

argues

appeal

that

sentence

procedurally unreasonable because the district court improperly considered factors not permitted by 18 U.S.C. § 3583(e) (2006). We affirm. We will not disturb a sentence imposed after

revocation of supervised release that is within the prescribed statutory range and is not plainly unreasonable. v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). determination, unreasonable. we first consider whether the United States In making this sentence is

Id. at 438.

"This initial inquiry takes a more

deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences." United States v. Moulden, 478 F.3d 652, 656 (4th

Cir. 2007) (internal quotation marks and citation omitted). The however. 2010). district court's discretion is not unlimited,

United States v. Thompson, 595 F.3d 544, 547 (4th Cir. For instance, the district court commits procedural

error by failing to adequately explain the chosen sentence or by not providing an individualized assessment based on the facts. Gall v. United States, 552 U.S. 38, 51 (2007). court need not be as detailed 2 or specific Although "[a] imposing a

when

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revocation

sentence

as

it

must

be

when

imposing

a

post-

conviction sentence, . . . it still must provide a statement of reasons for the sentence imposed. Thompson, 595 F.3d at 547 The judge also

(internal quotation marks and citation omitted).

must "set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Although a district court "ultimately has broad United

discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum," Crudup, 461 F.3d at 439 (internal quotation marks omitted), the court must consider the Chapter Seven policy statements in the federal sentencing guidelines manual, as well as the statutory requirements and factors applicable 3583(e) to revocation sentences under 18 U.S.C. "at

§§ 3553(a),

(2006).

Chapter

Seven

provides,

revocation, the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator." USSG ch. 7, pt. A(3)(b). Section

3583 approves consideration of a majority of the factors listed in § 3553(a), omitting only two. 18 U.S.C. § 3583(e). Among

the omitted factors is the need "to reflect the seriousness of

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the offense, to promote respect for the law, and to provide just punishment for the offense." In reasons for this case, a 18 U.S.C. § 3553(a)(2)(A). district court offered an several upward

the

imposing

twenty-four-month

sentence,

departure from the policy statement range of six to ten months. It considered Walker's two sentence reductions from his original sentence, Walker's criminal history, and the circumstances under which Walker violated the terms of his supervised release, which included committing property and drug-related crimes, fleeing

from justice, and resisting arrest. the upward departure reflected the

While the court said that seriousness of Walker's

revocation conduct, the grounds cited by the district court were relevant to other required considerations, including the nature and circumstances of of the the offense and 18 the history and

characteristics

defendant.

U.S.C.

§ 3553(a)(1),

(a)(2)(B), (a)(2)(C). entirety, factors we did find not

Reviewing the court's explanation in its court's consideration of the stated

the

render

Walker's

sentence

procedurally

unreasonable. Accordingly we conclude that Walker's sentence is not plainly unreasonable. district facts court. legal We We therefore affirm the judgment of the dispense with are oral argument because in the the

and

contentions

adequately

presented

4

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materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

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