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UNPUBLISHED PER CURIAM OPINION filed.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]

US v. Cecil White

Doc. 0

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Date Filed: 10/22/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5187 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CECIL DEAN WHITE, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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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

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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

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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

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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

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adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process. AFFIRMED

6