US v. Kilby Barbee

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [998513387-2]. Originating case number: 7:06-cr-00017-F-1. Copies to all parties and the district court/agency. [998549171].. [10-4569]

US v. Kilby Barbee

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Case: 10-4569

Document: 31

Date Filed: 03/21/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4569

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. KILBY GRAYSON BARBEE, a/k/a Grayson Barbee, a/k/a Graton Barbee, a/k/a Kilby C. Barbee, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:06-cr-00017-F-1)

Submitted:

March 10, 2011

Decided:

March 21, 2011

Before WILKINSON, NIEMEYER, and WYNN, 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Affirmed by unpublished per curiam opinion.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, Jennifer P. MayParker, Felice McConnell Corpening, 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Unpublished opinions are not binding precedent in this circuit.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: Kilby twenty-four-month supervised release. Grayson sentence Barbee imposed appeals upon from of his his

revocation

On appeal, he asserts that his sentence is We affirm. of the supervised applicable United In the

procedurally and substantively unreasonable. A release sentence be imposed after if it

revocation is within

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 guidelines sentences." 652, 656 (4th Cir. 2007). generally the procedural United States v. Moulden, 478 F.3d In making this 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. 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. 2

See 18 U.S.C.

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§ 3583(e)

(2006);

Crudup,

461

F.3d

at

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. Id. at 439. We affirm if the Only if a sentence will we Id. its

sentence is not unreasonable. is found procedurally the or

substantively is plainly

unreasonable

"decide "[T]he

whether court

sentence has

unreasonable." to revoke

ultimately

broad

discretion

previous sentence and impose a term of imprisonment up to the statutory maximum." When Id. sentence, the district court must

imposing

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] court need not be as detailed as it or must specific be when imposing imposing a a

revocation

sentence

when

post-conviction sentence." 544, 547 (4th Cir. 2010).

United States v. Thompson, 595 F.3d

3

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Here, the district court considered Barbee's arguments for a sentence combining incarceration, home confinement, and drug treatment, and rejected them. The court explicitly

considered the Guidelines range as well as many of the statutory factors that it was permitted to consider when arriving at a sentence. continued In drug this use regard, after the drug court mentioned the Barbee's need to

even

treatment,

protect society from the consequences of Barbee's drug use, and the need for Barbee to receive further treatment. As such, the

district court adequately discussed the reasons for the chosen sentence, reasonable. Turning to the substantive reasonableness of Barbee's sentence, the district court's decision that another period of non-incarcerated (or minimally incarcerated) drug treatment was not a sufficient sanction for Barbee's multiple violations of supervised release was not an abuse of discretion. the length of the sentence and the court's In addition, recommendation and thus, Barbee's sentence was procedurally

increased the likelihood that Barbee would receive the requested and recommended intensive drug treatment while in prison. Crudup, 461 F.3d at 440 (upholding imposition of See

maximum

sentence for revocation of supervised release based, in part, on need Crudup for substance abuse treatment substance 4 and recommendation treatment that while

receive

intensive

abuse

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Date Filed: 03/21/2011

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incarcerated).

Finally, Barbee failed to show in district court

or on appeal that there was a permissible way of structuring his sentence that would ensure both a substantial sentence and

continued intensive drug treatment. Moreover, challenging his Barbee faces Even a if very he heavy show burden that in his

sentence.

could

sentence was unreasonable, he would still need to show that it was plainly unreasonable. A sentence is "plainly unreasonable" Thompson, 595 F.3d

if it "run[s] afoul of clearly settled law." at 548.

Barbee 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. Accordingly, we affirm Barbee's sentence. We deny

Barbee's motion to file a pro se reply brief. oral argument because in the the facts and legal before

We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

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