US v. Timothy McCuller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:94-cr-00097-F-6. Copies to all parties and the district court/agency. [998559136] [10-4497]

Case: 10-4497

Document: 44

Date Filed: 04/04/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4497

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY GEROME MCCULLERS, a/k/a Tim,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:94-cr-00097-F-6)

Submitted:

March 31, 2011

Decided:

April 4, 2011

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ronald Cohen, Wilmington, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-4497

Document: 44

Date Filed: 04/04/2011

Page: 2

PER CURIAM:
Timothy
fifty-nine-month

Gerome

McCullers

sentence

supervised release.

imposed

appeals

upon

from

revocation

his

of

his

Counsel has filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), stating that
there

are

no

meritorious

issue

of

whether

issues

McCullers’

for

appeal,

sentence

is

but

raising

unreasonable.

the
We

affirm.
A
release

sentence

should

statutory

be

maximum

imposed

after

affirmed
and

is

if

it

not

revocation
is

plainly

within

of

supervised

the

applicable

unreasonable.

United

States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006).
making

this

determination,

sentence is unreasonable.

we

first

Id. at 438.

consider

whether

In
the

“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).

In making its review, we “follow

generally

the

procedural

and

substantive

considerations

that

[are] employ[ed] in [the] review of original sentences, . . .
with

some

unique

necessary

nature

of

modifications

supervised

to

release

Crudup, 461 F.3d at 438-39.

2

take

into

revocation

account

the

sentences.”

Case: 10-4497

A
procedurally
Chapter

Document: 44

sentence

imposed

reasonable

Seven

Date Filed: 04/04/2011

policy

if

upon

the

revocation

district

statements

and

of

court

the

18

Page: 3

(2006);

Crudup,

461

F.3d

at

is

considered

U.S.C.

(2006) factors that it is permitted to consider.
§ 3583(e)

release

the

§ 3553(a)

See 18 U.S.C.

438-40.

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.

Crudup, 461 F.3d at 440.

sentence is not unreasonable.
is

found

“decide
“[T]he

procedurally

whether
court

the

or

substantively

sentence

ultimately

Id. at 439.

has

is

plainly

broad

We affirm if the
Only if a sentence

unreasonable

will

unreasonable.”

discretion

to

revoke

we
Id.
its

previous sentence and impose a term of imprisonment up to the
statutory maximum.”
When

Id.

imposing

sentence,

the

district

court

must

provide individualized reasoning:
The sentencing judge should 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. . . .
Where the defendant . . . presents
nonfrivolous reasons for imposing a different sentence
than that set forth in the advisory Guidelines, a
district judge should address the party’s arguments
and explain why he has rejected those arguments.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

The

Carter rationale applies to revocation hearings; however, “[a]
3

Case: 10-4497

court

need

not

revocation

Document: 44

be

as

sentence

Date Filed: 04/04/2011

detailed
as

or

it

post-conviction sentence.”

specific

must

be

Page: 4

when

when

imposing
imposing

a
a

United States v. Thompson, 595 F.3d

544, 547 (4th Cir. 2010).
The district court followed the necessary procedural
steps

in

sentencing
Guidelines

Sentencing

McCullers,
as

appropriately

advisory,

the

calculating

properly

treating

and

considering the applicable Guidelines range, and weighing the
relevant § 3553(a) factors.
imposing

the

above

Guidelines

a

sentence

unreasonable).

sentence

and

we

conclude

the

See Gall 552 U.S. at 51 (court may not

sentence was reasonable.
presume

The court gave sound reasoning for

outside

the

Guidelines

range

is

The court’s sentence may be presumed reasonable

by this court.
Moreover,
challenging

his

McCullers

sentence.

faces
Even

if

a

very

he

heavy

could

show

burden

in

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.”
at 548.

Thompson, 595 F.3d

McCullers has not cited clearly settled law that was

violated by the district court’s sentence, and the record does
not reveal any such obvious errors.
McCullers

filed

a

pro

se

supplemental

brief

maintaining that his sentence was excessive and that he did not
4

Case: 10-4497

admit

to

release.

drug
In

Document: 44

distribution
accordance

Date Filed: 04/04/2011

as

with

a

violation

Anders,

we

of

have

Page: 5

his

supervised

reviewed

these

issues and the record in this case and have found no meritorious
issues for appeal.
and

sentence.

McCullers,

in

We therefore affirm McCullers’ conviction
This

writing,

court

requires

that

of

right

petition

the

to

counsel

Court of the United States for further review.

the

inform
Supreme

If McCullers

requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.

Counsel’s

motion must state that a copy thereof was served on McCullers.
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