US v. Duane Fox

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00045-MOC-1 Copies to all parties and the district court/agency. [999751690].. [15-4248]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4248

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUANE LEROY FOX,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00045-MOC-1)

Submitted:

January 28, 2016

Before MOTZ and
Circuit Judge.

DUNCAN,

Circuit

Decided:

Judges,

and

February 9, 2016

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Ross Hall Richardson, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant.
Jill Westmoreland Rose, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Duane

Leroy

Fox

appeals

his

12-month

after revocation of supervised release.
that:

sentence

received

On appeal he contends

(1) the district court committed plain error when it

failed to invite him to address the court before imposing his
sentence; and (2) the sentence is plainly unreasonable because
the

district

court

failed

to

determine

and

consider

the

Sentencing Guidelines policy statement range before imposing the
sentence.

For the reasons that follow, we affirm.

We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
plainly unreasonable.
437

(4th

Cir.

United States v. Crudup, 461 F.3d 433,

2006).

Only

if

a

revocation

sentence

unreasonable, must we assess whether it is plainly so.

is

United

States v. Moulden, 478 F.3d 652, 656-57 (4th Cir. 2007).

In

determining whether a revocation sentence is unreasonable, we
strike a more deferential appellate posture than when reviewing
original sentences, id. at 656, and apply the same procedural
and substantive considerations that guide a court’s review of
original sentences.
court

must

applicable
Sentencing

consider
policy

Crudup, 461 F.3d at 438.
both

statement

Guidelines

the

policy

range

manual,

as

18 U.S.C. § 3553(a) (2012) factors.
2

found
well

A sentencing

statements
in

Chapter

as

the

and
7

of

the
the

applicable

Moulden, 478 F.3d at 656-

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57.

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The

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court

need

not

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analyze

every

§

3553(a)

factor.

Ultimately, a sentencing court has broad discretion to revoke
release and to impose a term of imprisonment up to the statutory
maximum.

Id. at 657.

Before imposing a sentence, a district court must address
the defendant personally in order to permit him to speak or
present any information to mitigate the sentence.

Fed. R. Crim.

P. 32(i)(4)(A)(ii); see United States v. Muhammad, 478 F.3d 247,
248-49 (4th Cir. 2007).

Fox alleges that the district court

erred when it did not invite him to address the court prior to
imposing sentence.
time

on

appeal,

Because Fox raises this issue for the first
we

review

the

issue

only

for

plain

United States v. Olano, 507 U.S. 725, 731-32 (1993).

error.
Because

Fox addressed the court several times before he was sentenced,
we find that any error was harmless.
Next, Fox alleges error because the district court failed
to

consider

his

policy

statement

range.

When

imposing

a

revocation sentence, a district court must “consider the policy
statements

contained

in

Chapter

7,

including

the

policy

statement range, as ‘helpful assistance,’ and . . . consider the
applicable

§

3553(a)

factors.”

Moulden,

(quoting Crudup, 461 F.3d at 439).

478

F.3d

at

656–57

The record reveals that the

district court did consider relevant § 3553(a) factors, and had
read

the

probation

officer’s

petition,
3

which

discussed

Fox’s

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policy statement range.

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Given that Fox’s policy statement range

was 24 months, and the court imposed a 12-month sentence after
considering relevant § 3553(a) factors, we discern no reversible
error.

Moreover, we note that the district court was faced with

a cantankerous, foul-mouthed defendant, who was threatening his
probation

officer

proceeding,
plainly

we

do

at
not

unreasonable,

the

hearing.

find

that

despite

the

In

Fox’s

the

context

12-month

court’s

of

sentence

failure

to

this
was

recite

Fox’s policy statement range prior to sentencing.
Accordingly, we affirm.

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

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