US v. Cecil White

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:06-cr-00023-D-1 Copies to all parties and the district court/agency. [998451057] [09-5187]

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US v. Cecil White Doc. 0 Case: 09-5187 Document: 25 Date Filed: 10/22/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5187 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CECIL DEAN WHITE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (2:06-cr-00023-D-1) Submitted: August 31, 2010 Decided: October 22, 2010 Before MOTZ, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, 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 Unpublished opinions are not binding precedent in this circuit.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 Case: 09-5187 Document: 25 Date Filed: 10/22/2010 Page: 2 PER CURIAM: Cecil Dean White appeals from his twenty-four month sentence imposed pursuant to the revocation of his supervised release. On appeal, White asserts that his sentence is procedurally and substantively plainly unreasonable because the district court failed to consider the mitigating circumstances, gave excessive and weight failed to to the exaggerated severity of the violations, provide sufficiently compelling support for a major variance. A release sentence be imposed We affirm. after if it revocation is within of the supervised applicable United In the should affirmed and is statutory maximum not plainly unreasonable. States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). making this determination, we first consider whether sentence is unreasonable. 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 guideline sentences." 652, 656 (4th Cir. 2007). generally the procedural United States v. Moulden, 478 F.3d In making our review, we "follow and substantive considerations that [are] employ[ed] in [the] review of original sentences, . . . with some necessary of modifications to take into account the unique nature supervised release revocation sentences." Crudup, 461 F.3d at 438-39. 2 Case: 09-5187 Document: 25 Date Filed: 10/22/2010 Page: 3 A procedurally Chapter sentence imposed if upon 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. revocation of release is See 18 U.S.C. A sentence imposed upon reasonable if the substantively district court stated a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory maximum. the sentence is is Crudup, 461 F.3d at 440. unreasonable. or Id. at We will affirm if 439. Only if a not sentence found procedurally substantively unreasonable will we "decide whether the sentence is plainly unreasonable." Id. "[T]he court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum." When Id. sentence, the district court must imposing provide individualized reasoning. 564 F.3d 325, 328 (4th Cir. 2009). to revocation hearings; however, See United States v. Carter, The Carter rationale applies "a court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence." United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Because White did not request a sentence different See United from the one imposed, review is for plain error. 3 Case: 09-5187 Document: 25 Date Filed: 10/22/2010 Page: 4 States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). "To establish plain error, [White] must show that an error occurred, that the error was plain, and that the error affected his substantial rights." 249 (4th Cir. of 2007). the United States v. Muhammad, 478 F.3d 247, Even error if White makes this [the showing, court's] "correction remains within discretion, which [the court] should not exercise . . . unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." marks and citation omitted). In the Id. (internal quotation sentencing context, an error affects substantial rights if the defendant can show that the sentence imposed "was longer than that to which he would otherwise be subject." 518 (4th Cir. 2001). We conclude that White failed to make the requisite showings. His excuses for his admitted release violations fail United States v. Angle, 254 F.3d 514, to outweigh the fact that he repeatedly violated the terms of his supervised release. The district court considered White's The court explicitly considered the excuses and rejected them. Guidelines range (six to twelve months) as well as many of the statutory factors that it was permitted to consider when arriving at a sentence. White's continuing In this regard, the court mentioned conduct, the leniency of the criminal probation officer and the court in the past, the need to deter 4 Case: 09-5187 Document: 25 Date Filed: 10/22/2010 Page: 5 future violations, White's unsatisfactory conduct while on In supervised release, and his failure to take responsibility. addition, the court recommended that White receive substance abuse treatment. Moreover, claims he raises. White faces a very heavy burden on the Even if he could show that his sentence was unreasonable, he would still need to show that it was plainly unreasonable. A sentence is "plainly unreasonable" if it "run[s] afoul of clearly settled law." 549. White has flatly his failed to is make Thompson, 595 F.3d at such a for showing. plain In addition, because sentence reviewed error, White must also show that there is a reasonable probability that the claimed irregularity in sentencing affected his substantial rights and that any error affected the fairness and integrity of the judicial system. White's assertions of error illustrate essentially a disagreement with the district court's conclusions that his behavior constituted serious breaches of his release conditions. Even assuming rational minds could differ on whether the district court's conclusions were exaggerated, White cannot show that his substantial rights were affected or that the sentencing error was so egregious that it called into question the fairness of the sentencing system. Accordingly, we affirm White's sentence. We dispense with oral argument because the facts and legal contentions are 5 Case: 09-5187 Document: 25 Date Filed: 10/22/2010 Page: 6 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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