US v. Kenneth McDaniel

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:06-cr-00088-NCT-1 Copies to all parties and the district court/agency. [999610818].. [14-4906]

Appeal: 14-4906

Doc: 24

Filed: 06/29/2015

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4906

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH EUGENE MCDANIEL, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00088-NCT-1)

Submitted:

June 25, 2015

Decided:

June 29, 2015

Before GREGORY, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro,
North Carolina, for Appellant. Eric Lloyd Iverson, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4906

Doc: 24

Filed: 06/29/2015

Pg: 2 of 4

PER CURIAM:
Kenneth Eugene McDaniel, Jr., pled guilty in October 1996 to
conspiracy to possess with intent to distribute cocaine and cocaine
base (“crack”), in violation of 21 U.S.C. § 846 (2012).
district

court

originally

sentenced

McDaniel

to

20

years

imprisonment, followed by 10 years of supervised release.
court

subsequently

lowered

McDaniel’s

sentence

to

13

The
of
The

years.

McDaniel’s supervised release was revoked in 2006 and he was
sentenced to serve eight months’ imprisonment, followed by nine
years and four months of supervised release.

McDaniel’s second

term of supervised release commenced in August 2007.
A second petition to revoke McDaniel’s supervised release was
filed in January 2014 and amended in October 2014.

At the

revocation hearing, McDaniel admitted four of the five violations
listed in the petition:

(1) failure to notify his probation

officer within 72 hours of a change in residence; (2) failure to
notify his probation officer within 72 hours of an arrest; (3)
twice testing positive for marijuana use; and (4) failure to work
regularly

since

July

2009.

The

court

revoked

McDaniel’s

supervision and sentenced him to 48 months’ imprisonment with no
additional term of supervised release.

McDaniel appeals.

Appellate counsel has filed a brief pursuant to Anders v.
California,

386

U.S.

738

(1967),

revocation sentence is reasonable.
2

questioning

whether

the

Although informed of his right

Appeal: 14-4906

Doc: 24

Filed: 06/29/2015

Pg: 3 of 4

to file a pro se supplemental brief, McDaniel has not done so.
Finding no error, we affirm.
We will uphold a district court’s revocation sentence unless
it falls outside the statutory maximum or is otherwise “plainly
unreasonable.”
Cir. 2006).

United States v. Crudup, 461 F.3d 433, 437 (4th

Only if a revocation sentence is unreasonable do we

determine whether it is plainly so.
F.3d 652, 656 (4th Cir. 2007).

United States v. Moulden, 478

In making this determination, we

strike “a more deferential appellate posture” than we do when
reviewing original sentences.
citation omitted).

Id. (internal quotation marks and

The sentencing court “must consider” both the

policy statements and the applicable policy statement range found
in Chapter 7 of the Sentencing Guidelines Manual, as well as “the
applicable [18 U.S.C.] § 3553(a) [2012] factors.”

Moulden, 478

F.3d at 656; see also United States v. Webb, 738 F.3d 638, 641
(4th Cir. 2013).
“presumed

A sentence within the policy statement range is

reasonable,”

Webb,

738

F.3d

at

642,

though

“the

sentencing court retains broad discretion to . . . impose a term
of imprisonment up to the statutory maximum,” Moulden, 478 F.3d at
657.
We have reviewed the record and conclude that the sentence
imposed is both procedurally and substantively reasonable; it
follows, therefore, that the sentence is not plainly unreasonable.
In accordance with Anders, we have examined the entire record and
3

Appeal: 14-4906

Doc: 24

Filed: 06/29/2015

Pg: 4 of 4

have found no meritorious issues for appeal.
affirm the judgment of the district court.

Accordingly, we

This court requires

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

If

McDaniel 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 McDaniel.

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

4