US v. Demaris Jenkin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00038-WO-1 Copies to all parties and the district court/agency. [999014014].. [12-4273]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4273

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMARIS JEROME JENKINS,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00038-WO-1)

Submitted:

October 30, 2012

Decided:

January 3, 2013

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Demaris

Jerome

Jenkins

appeals

from

the

district

court’s revocation of his supervised release and imposition of
the statutory maximum twenty-four months in prison.

On appeal,

his attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), concluding that there are no meritorious
issues for appeal but questioning whether the court failed to
adequately

consider

mitigating

sentencing

circumstances

and

whether the court imposed a sentence greater than necessary to
comply

with

the

statutory

sentencing

factors.

Government nor Jenkins has filed a brief.

Neither

the

We affirm.

We will affirm a sentence imposed after revocation of
supervised

release

if

it

is

within

the

range and not plainly unreasonable.

prescribed

statutory

United States v. Crudup,

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

In determining whether a

sentence is plainly unreasonable, we must first consider whether
Id. at 438.

the sentence is unreasonable.
determination,

we

considerations

that

sentences.”

Id.

follow
[we

“the
use

procedural
in

the]

In making this
and

review

substantive
of

original

In this inquiry, we “take[] a more deferential

appellate posture concerning issues of fact and the exercise of
discretion

than

reasonableness

review

sentences.”

United States v. Moulden, 478 F.3d 652, 656 (4th

Cir. 2007) (internal quotation marks omitted).
2

for

guidelines

Only if we find

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the sentence procedurally or substantively unreasonable must we
decide whether it is “plainly” so.

Id. at 657.

plainly

afoul

unreasonable

if

it

runs

of

A sentence is

clearly

settled

United States v. Thompson, 595 F.3d 544, 548 (4th Cir.

law.
2010).

Regarding variances, we “may consider the extent of
the deviation [from the recommended Guidelines range], but must
give due deference to the district court’s decision that the [18
U.S.C.] § 3553(a) [2006] factors, on a whole, justify the extent
of

the

variance.”

(2007).

“The

Gall

v.

sentencing

United

judge

States,

should

552

set

U.S.

forth

38,

51

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.”
325,

328

(4th

Cir.

United States v. Carter, 564 F.3d

2009).

The

Carter

rationale

applies

to

revocation hearings; however, “[a] court need not be as detailed
or specific when imposing a revocation sentence as it must be
when imposing a post-conviction sentence.”

Thompson, 595 F.3d

at 547 (noting that a district court’s reasoning may be “clear
from

context”

and

the

court’s

statements

throughout

the

sentencing hearing may be considered).
Jenkins

argues

first

that

the

sentence

imposed

is

procedurally unreasonable because the district court failed to
consider his mitigating circumstances.
3

We conclude that the

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record does not support Jenkins’ assertions.

The court clearly

heard Jenkins’s arguments for leniency, but the court rejected
his attempts to minimize his actions by noting the repetitive
nature

of

his

violations,

as

well

as

the

violations occurred soon after his release.

fact

that

the

Moreover, the court

properly considered the nature and circumstances of Jenkins’s
underlying

conviction,

conviction,

the

and

lenient

Jenkins’s

sentence

given

failure

on

to

that
accept

See United States v. Johnson, 640 F.3d 195,

responsibility.

203-04 (6th Cir. 2011) (noting that district court may consider
leniency of original sentence in determining extent of breach of
trust).
for

Finally, the court gave specific, detailed reasoning

the

upward

Guidelines

variance

range,

Accordingly,

we

and

find

from

the

Jenkins

that

the

twelve-to-eighteen-month

does

not

sentence

is

argue
not

otherwise.
procedurally

unreasonable.
Next,

we

hold

that

the

sentence

was

substantively

reasonable, as it was within the prescribed statutory range and
resulted

from

relevant

§ 3553(a)

U.S.C.

the

§ 3583(e)

district
factors

(2006),

court’s
and

the

proper

policy

district

weighing

may

revoke

a

the

Under

statements.

of

18

term

of

supervised release and sentence a defendant to serve all or part
of

the

weighing

remaining
the

supervised

factors

set

release

forth
4

in

term

in

prison

§ 3553(a)(1),

after

(a)(2)(B),

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(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
the

court

offense,

considered
Jenkins’s

the

nature

history

and

and

circumstances

Here,
the

and

characteristics,

of

the

necessity of deterring further criminal conduct and protecting
the public.

18 U.S.C. § 3553(a)(1), (2)(B), (2)(C).

Therefore,

Jenkins’s sentence is substantively reasonable.
In accordance with Anders, we have reviewed the entire
record for reversible error and have found none.
affirm Jenkins’s revocation and sentence.

As such, we

This court requires

that counsel inform Jenkins in writing of his right to petition
the Supreme Court of the United States for further review.

If

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

Counsel’s

motion must state that a copy thereof was served on Jenkins.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

5