US v. Anthony McClain

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:96-cr-00179-CMC-1. Copies to all parties and the district court/agency. [998966496]. [12-4331]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4331

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY MCCLAIN, a/k/a Ice, a/k/a New York,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Cameron McGowan Currie, District
Judge. (5:96-cr-00179-CMC-1)

Submitted:

September 18, 2012

Decided:

October 24, 2012

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

John H. Hare, Assistant Federal Public Defender, Kimberly H.
Albro,
Research
and
Writing
Specialist,
Columbia,
South
Carolina, for Appellant.
Nancy Chastain Wicker, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anthony McClain appeals the district court’s judgment
revoking his supervised release and sentencing him to twentyfour months’ imprisonment.

McClain’s attorney has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal.

McClain has

filed a pro se supplemental brief raising several issues.
Government did not file a brief.
We

review

a

The

We affirm.

district

court’s

judgment

revoking

supervised release and imposing a term of imprisonment for abuse
of discretion.
Cir. 1992).

United States v. Copley, 978 F.2d 829, 831 (4th

To revoke supervised release, a district court need

only find a violation of a condition of supervised release by a
preponderance of the evidence.
McClain

had

no

objections

18 U.S.C. § 3583(e)(3) (2006).

to

the

amended

violations

report.

According to the report, while on supervision, McClain tested
positive for a controlled substance four times, pled guilty to
assault and battery in the first degree and admitted that he
exchanged crack cocaine for sex.

We conclude that it was shown

by a preponderance of the evidence that McClain violated his
supervised

release.

court

not

did

abuse

Accordingly,
its

we

discretion

release.

2

find
by

that

the

revoking

district

supervised

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We will affirm a sentence imposed after revocation of
supervised

release

if

it

is

within

the

prescribed

statutory

range and not plainly unreasonable.

United States v. Crudup,

461 F.3d 433, 439–40 (4th Cir. 2006).

We first consider whether

the sentence is procedurally or substantively unreasonable.
at 438.

Id.

In this initial inquiry, we take a more deferential

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).

Only if

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

Id. at 657.

While a district court must consider the Chapter Seven
policy

statements

and

the

statutory

factors

applicable

to

revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006),
the court need not robotically tick through every subsection,
and ultimately, the court has broad discretion to revoke the
previous sentence and impose a term of imprisonment up to the
statutory maximum.

Id. at 656–57.

Moreover, while a district

court must provide a statement of reasons for the sentence, the
court

need

not

be

as

detailed

or

specific

when

imposing

a

revocation sentence as when imposing a post-conviction sentence.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
We

have

reviewed

the

record

and

conclude

that

McClain’s sentence is within the prescribed range and is not
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plainly

unreasonable.

properly

considered

factors

in

At
the

imposing

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the

revocation

Guidelines
its

and

sentence,

hearing,

the

court

applicable

statutory

including

McClain’s

noncompliance and his very serious criminal record.
McClain argues that exchanging drugs for sex is not a
distribution
Distribution
substance.

offense.
includes

This
any

claim

actual

is

without

transfer

of

a

merit.

controlled

United States v. Washington, 41 F.3d 917, 919 (4th

Cir. 1994) (distribution includes sharing drugs with friends).
In McClain’s instance, he did more than share the crack cocaine;
he

gave

it

to

a

prostitute

in

exchange

for

sex.

Because

distribution of any amount of crack cocaine is a felony offense,
it was properly scored a Grade A violation.

See 21 U.S.C.

§ 841(b)(1)(C); U.S. Sentencing Guidelines Manual § 7B1.1. *
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States

*

McClain’s claim that his assault and battery conviction
was not a Grade A violation is moot. Assuming he is correct, he
still faced a Grade A violation by virtue of the drug
distribution charge.
Thus, because of the drug distribution
violation, his Chapter Seven Guidelines sentence was properly
determined to be twenty-four months.

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for further review.

If the client requests that a petition be

filed,

believes

but

counsel

that

such

a

petition

would

be

frivolous, then counsel may move in this court at that time for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on the client.
dispense

with

oral

argument

because

the

facts

Finally, we
and

legal

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

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