US v. Marlon Pegram

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:06-cr-00383-REP-1 Copies to all parties and the district court/agency. [999297045].. [13-4070]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4070

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARLON J. PEGRAM, a/k/a Marlon Jamel Pegram,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:06-cr-00383-REP-1)

Submitted:

January 22, 2014

Decided:

February 14, 2014

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Patrick L. Bryant,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Peter Sinclair Duffey, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marlon

J.

Pegram

appeals

from

the

thirty-six-month

sentence imposed by the district court after revocation of his
supervised

release.

Pegram's

accordance

with

v.

Anders

counsel

California,

filed

386

U.S.

a

brief

738

in

(1967),

stating that there are no meritorious grounds for appeal but
questioning
because

the

whether

Pegram’s

district

court

sentence
failed

reasoning for the sentence.

to

is

plainly

adequately

unreasonable
explain

the

Pegram has not filed a pro se

supplemental brief, despite receiving notice of his right to do
so.

For the reasons that follow, we affirm in part, vacate in

part, and remand for resentencing.
I.
“This Court reviews whether or not sentences imposed
upon revocation of supervised release are within the prescribed
statutory range and are not ʽplainly unreasonable.’”

United

States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010).

Because

Pegram’s

sentence

was

within

the

statutory

range,

the

issue

before us is whether his sentence is plainly unreasonable.
In sentencing for a violation of supervised release, a
district court must consider the statutory factors in 18 U.S.C.
§ 3583(e), the advisory Sentencing Guidelines range in the U.S.
Sentencing Guidelines Manual (“USSG”) § 7B1.4, p.s. (2012), as
well

as

the

Chapter

Seven

policy
2

statements

and

relevant

18

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U.S.C. § 3553(a) factors.

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See United States v. Moulden, 478

F.3d 652, 656 (4th Cir. 2007).
Here, there is no record evidence that the district
court in the revocation hearing considered the sentencing range,
which

would

have

been

calculated

statements of the Guidelines.

under

the

Chapter

See USSG § 7B1.4.

7

policy

There is no

record of a sentencing worksheet, mention of the worksheet on
the

record,

hearing.

or

discussion

of

the

sentencing

range

at

the

Thus, Pegram’s sentence is plainly unreasonable.

See

United States v. Waller, ___ F. App’x ___, 2013 WL 6727896, at
*1-*2 (4th

Cir.

Dec.

23,

2013)

(No.

13-4118)

(remanding

for

resentencing because district court failed to consider policy
statement range on record). 1
II.
In accordance with Anders, we have reviewed the entire
record and have found one meritorious ground for appeal.

Thus,

for the reasons set forth herein, we vacate the thirty-six-month
sentence and remand for resentencing in conformity with this

1

We do not resolve whether the standard of review is for
harmless or plain error because reversal is appropriate under
either standard.

3

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We affirm the district court’s decision to revoke

Pegram’s supervised release.
This
writing,

of

court

the

requires

right

to

that

petition

United States for further review.

counsel
the

inform

Supreme

Pegram,

Court

of

in
the

If Pegram 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 Pegram.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

2

By this disposition, we intimate no view as to the length
of the sentence to be imposed on remand, leaving that decision
to the district court in the first instance.

4