US v. Robert Kirby, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:02-cr-00111-BR-1 Copies to all parties and the district court/agency. [999480795].. [14-4290]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4290

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LESTER KIRBY, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
W. Earl Britt,
Senior District Judge. (7:02-cr-00111-BR-1)

Submitted:

November 20, 2014

Decided:

November 24, 2014

Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert
months

in

release.

Lester

prison
He

Kirby

following

appeals,

was

the

arguing

sentenced

revocation
that

his

to

of

thirty-seven

his

sentence

supervised
is

plainly

unreasonable because it is greater than necessary to serve the
purposes of supervised release.

We affirm.

The district court has broad discretion in selecting
the sentence to impose upon revoking a defendant’s supervised
release.

United States v. Thompson, 595 F.3d 544, 547 (4th Cir.

2010).

This

court

will

affirm

a

sentence

imposed

after

revocation of supervised release if it is within the governing
statutory range and not plainly unreasonable.
Crudup, 461 F.3d 433, 437–40 (4th Cir. 2006).

United States v.
“When reviewing

whether a revocation sentence is plainly unreasonable, we must
first determine whether it is unreasonable at all.”

Thompson,

595 F.3d at 546.
A sentence is procedurally reasonable if the district
court has considered the policy statements contained in Chapter
Seven of the Sentencing Guidelines and the applicable 18 U.S.C.
§

3553(a)

(2012)

factors,

Crudup,

461

adequately explained the sentence chosen.
547.

F.3d

at

440,

and

has

Thompson, 595 F.3d at

A sentence is substantively reasonable if the district

court states “a proper basis” for its imposition of a sentence
up to the statutory maximum.

Crudup, 461 F.3d at 440.
2

If,

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after considering the above, we decide that the sentence is not
unreasonable, we will affirm.

Id. at 439.

Only if this court

finds the sentence unreasonable must it decide whether it is
“plainly” so.

Id. at 439.

With these principles in mind, we have reviewed the
record and the parties’ briefs and conclude that Kirby’s withinGuidelines

sentence

unreasonable.
We

dispense

contentions

of

thirty-seven

months

is

not

plainly

Accordingly, we affirm the revocation judgment.
with

are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

3