US v. Antonio Branch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:01-cr-00061-HCM-1. Copies to all parties and the district court/agency. [998872007].. [11-5032]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5032

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO BRANCH,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:01-cr-00061-HCM-1)

Submitted:

May 31, 2012

Decided:

June 11, 2012

Before MOTZ, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Patricia Palmer Nagel, THE LAW OFFICES OF PATRICIA PALMER NAGEL,
PLC, Williamsburg, Virginia, for Appellant.
Neil H. MacBride,
United States Attorney, Robert E. Bradenham, II, Assistant
United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antonio

Branch

appeals

the

district

court’s

order

revoking his supervised release and sentencing him to thirty
months’ imprisonment.

Branch argues his revocation sentence is

procedurally unreasonable because the district court failed to
properly

calculate

unreasonable

the

because

Guidelines

the

district

range
court’s

adequately support the sentence imposed.
This

court

will

and

affirm

substantively

rationale

did

not

We affirm.

a

sentence

imposed

after

revocation of supervised release if the sentence is within the
applicable

statutory

maximum

and

is

not

“plainly

unreasonable.”

United States v. Crudup, 461 F.3d 433, 437, 439-

40

2006).

(4th

Cir.

In

determining

whether

a

revocation

sentence is “plainly unreasonable,” the court first assesses the
sentence

for

unreasonableness,

“follow[ing]

generally

the

procedural and substantive considerations that [it] employ[s] in
Id. at 438.

[its] review of original sentences[.]”
A

revocation

sentence

is

procedurally

reasonable

if

the district court considered the Sentencing Guidelines Chapter
7 advisory policy statements and the 18 U.S.C. § 3553(a) (2006)
factors that it is permitted to consider in a supervised release
revocation

case.

Id.

at

440.

A

revocation

sentence

is

substantively reasonable if the district court stated a proper
basis for concluding the defendant should receive the sentence
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imposed, up to the statutory maximum.

Only if a sentence

Id.

is found procedurally or substantively unreasonable will this
court

“then

decide

whether

unreasonable.” Id. at 439.

the

sentence

is

plainly

A sentence is “plainly” unreasonable

if it is clearly or obviously unreasonable.

Id.

Branch argues

the district court erred in calculating his Guidelines range by
failing to apply the Fair Sentencing Act of 2010 (“FSA”), Pub.
L.

No.

111-220,

felony

124

conviction,

Stat.
which,

2372,
Branch

to

his

original,

contended,

would

effect of lowering his Guidelines sentencing range.

underlying
have

the

This court

has held that the FSA is not retroactive for offenders, like
Branch, whose sentencing pre-dated the effective date of the
statute.

United States v. Bullard, 645 F.3d 237, 248-49 (4th

Cir.) (“We agree with all eight circuits that have ruled on the
issue

that

retroactivity,

the

FSA

nor

can

contains
any

such

no

express

intent

be

statement

inferred

language.”), cert. denied, 132 S. Ct. 356 (2011).

from

of
its

Thus, we

conclude the FSA had no bearing on Branch’s Guidelines range.
As to the substantive reasonableness of Branch’s sentence, we
have

examined

the

transcript

of

the

sentencing

hearing

and

conclude that the district court’s statements adequately support
the sentence it imposed.
court’s judgment.
facts

and

legal

Accordingly, we affirm the district

We dispense with oral argument because the
contentions

are
3

adequately

presented

in

the

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materials

before

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the

court

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and

argument

would

not

aid

the

decisional process.

AFFIRMED

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