US v. Terry McMillian
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:11-cr-00102-H-1 Copies to all parties and the district court/agency. [999854388].. [15-4308]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4308
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRY LASHAVIOUS MCMILLIAN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Malcolm J. Howard,
Senior District Judge. (7:11-cr-00102-H-1)
Argued:
May 12, 2016
Decided:
June 15, 2016
Before KING and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Christopher
Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
ON BRIEF: Thomas P. McNamara,
Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
While
on
supervised
release
in
North
Carolina,
Terry
Lashavious McMillian was arrested and charged in state court
with various criminal offenses.
Although those charges were
later dismissed, McMillian’s probation officer sought to revoke
supervised release on the facts underlying the state charges.
The
district
release,
and
court
agreed,
sentenced
him
revoked
to
McMillian’s
twenty-four
months
supervised
in
prison.
McMillian appeals the court’s revocation decision and sentence.
As explained below, we affirm.
I.
A.
In December 2011, McMillian pleaded guilty in the Eastern
District
of
U.S.C. § 371.
to
forty-six
release.
North
Carolina
to
a
conspiracy
offense
under 18
In April 2012, the district court sentenced him
months
in
prison
and
three
years
of
supervised
As a condition of supervised release, McMillian could
not “commit another federal, state, or local crime.”
14. 1
See J.A.
In January 2014, McMillian was released from prison and
began serving his three-year term of supervised release.
1
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
3
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On March 1, 2015, McMillian was arrested and charged in
Columbus
County,
offenses:
North
Carolina,
“Damage
to
Real
on
four
state
Property”;
criminal
“Assault
by
Strangulation”; “Larceny of a Motor Vehicle”; and “Second Degree
Kidnapping.”
See J.A. 18, 37.
Three days later, as a result of
those charges, McMillian’s probation officer moved the district
court for revocation of supervised release.
The motion alleged
that, on February 25 and 26, 2015, McMillian had assaulted Ashea
Covington — his girlfriend and the complaining witness — “by
holding her down on the ground and strangling her.”
Id. at 18.
He also “forced her into her car and drove around for several
hours
not
allowing
her
without her permission.
Covington
against
later
McMillian,
criminal charges.
district
court,
conducted
an
officer;
and
recanted
the
out,”
and
then
took
her
car
the
allegations
prosecutor
she
dismissed
had
the
made
state
The revocation motion remained pending in the
however,
evidentiary
Sheriff’s
get
Id.
and
witnesses testified:
County
to
and
on
hearing
May
28,
on
2015,
that
the
motion.
court
Three
Tyler Reeves, a sergeant with the Columbus
Office;
Covington.
John
Cooper,
Reeves
McMillian’s
recounted
the
probation
allegations
Covington had made against McMillian shortly after the assault,
and
authenticated
and
introduced
Covington’s
statement, which detailed those events.
4
signed
written
Cooper authenticated
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and
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introduced
the
written
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statement
of
Pearl
Covington’s mother — concerning the assault.
Carter
—
In her testimony,
Covington again repudiated the allegations she had made against
McMillian.
McMillian
did
not
testify,
but
introduced
into
evidence the dismissals of the state charges.
B.
The evidence at the hearing was that, on February 24, 2015,
McMillian showed up uninvited at the residence of Covington and
Carter. 2
When
Covington and Carter refused entry, McMillian
broke their glass storm door.
The following day, McMillian and Covington had an argument,
which
escalated
Covington.
to
physical
violence
when
McMillian
attacked
After the assault, McMillian ordered Covington to
get in her car, and then drove her around Columbus and Bladen
Counties for several hours.
When McMillian stopped for gas —
which he bought with Covington’s debit card — he dared her “to
yell for help” and threatened to “beat her dead” if she did.
See J.A. 100.
McMillian eventually released Covington, but he
kept her car, her debit card, and one of her credit cards.
Carter
called
the
Columbus
County
Sheriff’s
report that her daughter had been assaulted.
2
Office
to
Sergeant Reeves,
We recite the facts in the light most favorable to the
government, as the prevailing party at the revocation hearing.
See United States v. Thum, 749 F.3d 1143, 1145 (9th Cir. 2014).
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who responded to the call, interviewed both Carter and Covington
on February 28, 2015.
He observed that Covington’s “whole [eye]
was bloodshot red” from a “busted” blood vessel.
35.
See J.A. 34-
Covington told Reeves that she suffered the eye injury when
McMillian strangled her.
Reeves also took Covington’s written
statement, which reads, in pertinent part:
[O]n Wednesday, February [25], 2015[,] [McMillian and
I] exchanged words, after which [McMillian] jumped at
me.
As I was knocked to the ground, I was choked
nearly unconscious.
I urinated on myself.
He then
sat on my chest and slapped me in my face several
times resulting in a busted lip, busted blood vessels
in right eye, swollen jaw. He also forced my fingers
back nearly as far as they would go.
Eventually he
allowed me up and told me to go wash my face up
because my mouth was bleeding. He then took my entire
set of keys and told me to go get in my vehicle and
that he was driving. He said that if I tried anything
crazy that he would beat me dead where I was despite
location and company. He rode me around until the wee
hours of the morning and took me back to my mother’s
home.
He has refused to give me the keys back to my
vehicle to this moment.
Id. at 99.
At about 9:00 a.m. on March 2, 2015, Covington visited the
emergency room of the Columbus County Regional Medical Center,
complaining of pain around her temples and in the ring fingers
of both hands, as well as generalized body pain.
to
the
medical
personnel
that
her
injuries
She reported
were
caused
by
McMillian’s assault about a week earlier, when he “strangled and
choked”
her,
kicked
multiple times.”
her,
and
“slapped
See J.A. 102, 110.
6
[her]
in
[the]
face
On physical examination, a
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physician assistant noted subconjunctival hemorrhage — a broken
blood
vessel
in
the
white
of
the
eyes.
An
x-ray
showed
possible hairline fracture of Covington’s left ring finger.
a
A
splint was placed on each of Covington’s ring fingers, and she
was discharged from the hospital.
C.
After considering the evidence presented and argument from
counsel, the district court ruled that McMillian had violated
the terms of his release “by his criminal conduct, to include
assault and probable theft of a motor vehicle.”
Before
sentencing
McMillian,
the
court
See J.A. 89.
explained
its
determination of the applicable Sentencing Guidelines range:
The court believes that this is a grade A violation
and the defendant has a criminal history category of
roman numeral V. Under Chapter 7, it would be a 30 to
37-month type of sentence available for the court to
consider; however, there’s a [statutory] maximum of 24
months.
Id.
Relying
on
Covington’s
hearing
testimony,
in
which
she
repudiated her earlier version of the relevant events, McMillian
asked the district court to consider downgrading his supervised
release violation from grade A to grade C, based on the lesser
offenses of misdemeanor assault and unauthorized use of a motor
vehicle.
The
court
declined
to
do
so,
however,
finding
Covington’s exculpatory testimony “unreliable in its totality,”
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instead
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crediting
her
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earlier
inculpatory
Sergeant Reeves and the hospital staff.
also
sought
otherwise
release.
a
lenient
complied
sentence
with
the
on
statements
See J.A. 91.
the
conditions
ground
of
McMillian
that
his
to
he
had
supervised
The court rejected that entreaty as well, explaining
that, although McMillian “hadn’t had any problems while he had a
job,” he also had “a long history of this type of conduct.”
Id.
at 92.
The
district
court
then
revoked
McMillian’s
supervised
release and sentenced him to twenty-four months in prison.
rendering
its
sentence,
the
court
explained
that
it
In
had
“considered the policy statements contained in Chapter 7 of the
U.S. Sentencing Guidelines as well as the other factors set out
in [18 U.S.C. § 3553(a)].”
that,
most
intense anger management training and education possible.”
Id.
96.
McMillian
incarcerated,
Later
has
that
timely
day,
McMillian
The court recommended
the
at
while
See J.A. 95.
the
appealed,
“be
court
and
exposed
entered
we
to
its
possess
judgment.
jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
On appeal, McMillian presents three contentions of error.
First, he argues that the district court erred in finding that
he
committed
the
state
offense
8
of
assault
by
strangulation.
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Second, he contends that the court plainly erred in calculating
the
applicable
maintains
that
twenty-four
Sentencing
the
month
court
Guidelines
failed
revocation
to
range.
Finally,
explain
adequately
sentence.
We
he
the
address
those
contentions in turn.
A.
McMillian first contends that the district court erred in
finding that he committed the North Carolina offense of assault
by
strangulation.
The
government
responds
that
the
court’s
finding was supported by the evidence and thus was not clearly
erroneous.
To
revoke
a
defendant’s
supervised
release,
a
district court need only find by a preponderance of the evidence
that the defendant violated a condition of release.
See United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
such a factual finding for clear error.
We review
See United States v.
Padgett, 788 F.3d 370, 373 (4th Cir. 2015).
Assault by strangulation is proscribed by N.C. Gen. Stat.
§ 14-32.4(b),
which
provides
that
“any
person
who
assaults
another person and inflicts physical injury by strangulation is
guilty
of
a
strangulation
physical
Class
are
injury
by
H
(1)
felony.”
an
assault
The
and
strangulation.
S.E.2d 760, 764 (N.C. Ct. App. 2008).
9
elements
See
(2)
the
State
of
assault
by
infliction
of
v.
Little,
654
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McMillian contends on appeal that the government failed to
show by a preponderance of the evidence that Covington suffered
any physical injury resulting from strangulation.
In support of
that contention, McMillian emphasizes the absence of evidence of
either redness or bruising around Covington’s neck.
Addressing
Covington’s eye injury, McMillian points to Covington’s written
statement, which attributes that injury to being slapped in the
face, rather than being strangled.
The
evidence,
however,
proved
that
McMillian
had
choked
Covington almost to the point of unconsciousness, causing her to
lose control of her bladder.
As a result, Covington suffered a
subconjunctival hemorrhage — an eye injury that commonly occurs
as a result of either strangulation or a direct blow to the eye.
See State v. Lanford, 736 S.E.2d 619, 628 (N.C. Ct. App. 2013).
Although Covington reported being slapped across the face, there
is no evidence to suggest that McMillian struck her directly in
her eye.
medical
Moreover, Covington complained of neck pain to the
personnel
at
the
hospital.
Accordingly,
we
are
satisfied that the court did not clearly err in finding, by a
preponderance
of
the
evidence,
that
McMillian
strangled
Covington and thereby caused her to suffer a physical injury.
See State v. Lowery, 743 S.E.2d 696, 699 (N.C. Ct. App. 2013)
(finding
sufficient
evidence
presented
10
to
satisfy
physical
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injury
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prong
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of
assault
by
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strangulation
where
evidence
of
injuries was consistent with strangulation). 3
B.
McMillian next contends — for the first time on appeal —
that the district court miscalculated the advisory Guidelines
range for his supervised release violation.
Specifically, he
argues that the court misclassified assault by strangulation as
a “crime of violence” under the applicable Guidelines provision,
and thus overstated the severity of his violation.
We
review
a
sentence
imposed
for
a
supervised
release
violation “to determine if it is ‘plainly unreasonable.’”
United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006).
making
that
determination,
“we
first
consider
whether
See
In
the
sentence imposed is procedurally or substantively unreasonable.”
See United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).
As relevant here, procedural error in the sentencing context may
include improperly calculating the Guidelines range or failing
to adequately explain the chosen sentence.
3
See United States v.
McMillian also contends that the district court erred in
finding that he committed larceny with respect to Covington’s
car, insisting that the prosecutors failed to prove that he
intended to permanently deprive Covington of her vehicle. That
contention lacks merit. The evidence showed that McMillian took
Covington’s car without her consent and was yet in possession of
the vehicle when he was arrested almost a week later.
On that
evidence, the court was entitled to infer that McMillian
intended to keep the car and thus had committed larceny.
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Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013).
If we conclude
that a sentence is unreasonable, we then consider whether it is
also “plainly unreasonable, relying on the definition of ‘plain’
that
we
use
obvious.
in
our
‘plain’
error
analysis,”
i.e.,
clear
or
See Crudup, 461 F.3d at 439.
An issue pursued on appeal but not preserved in the lower
court is reviewed for plain error only.
Olano, 507 U.S. 725, 731-32 (1993).
See United States v.
To satisfy that standard, a
defendant must show “(1) that an error was made; (2) that the
error was plain; and (3) that the error affected his substantial
rights.”
See United States v. Carthorne, 726 F.3d 503, 510 (4th
Cir. 2013).
We will correct a plain error only when those
criteria are satisfied and doing so is necessary to prevent “a
miscarriage of justice” or to ensure “the fairness, integrity or
public reputation of judicial proceedings.”
v.
Whitfield,
695
F.3d
288,
303
(4th
See United States
Cir.
2012)
(internal
quotation marks omitted).
1.
Chapter 7 of the Sentencing Guidelines addresses probation
and
supervised
release
violations.
The
advisory
Guidelines
range for a violation of a condition of supervised release is
determined
section
defendant
by
the
Revocation
7B1.4(a).
depends
The
on
Table
range
three
applicable
factors,
12
contained
only
in
Guidelines
to
a
particular
two
of
which
are
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relevant to these proceedings:
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the defendant’s criminal history
category, as determined at the time the defendant was sentenced
to the term of supervision; and the grade of the supervised
release violation.
See USSG § 7B1.4(a). 4
If the range specified
by the Revocation Table is entirely above the statutory maximum
sentence
or
below
the
statutory
minimum
sentence,
then
the
statutory maximum or minimum sentence, respectively, “shall be
substituted for the applicable range.”
See id. § 7B1.4(b)(1),
(2).
Guidelines section 7B1.1 creates three grades of supervised
release violations:
A, B, and C.
Grade A violations arise from
conduct constituting either an offense punishable by more than
twenty years in prison; or an offense punishable by more than
one year in prison “that (i) is a crime of violence, (ii) is a
controlled substance offense, or (iii) involves possession of a
firearm or destructive device.”
B
violations
offense
encompass
punishable
§ 7B1.1(a)(2).
by
All
classified as grade C.
all
more
other
See USSG § 7B1.1(a)(1).
conduct
than
one
supervised
constituting
year
in
release
Grade
any
other
prison.
Id.
violations
are
Id. § 7B1.1(a)(3).
4
We refer in this opinion to the 2014 edition of the
Sentencing Guidelines, the edition applicable to McMillian’s
sentencing for his supervised release violation.
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Application
that
the
term
section 4B1.2.
Note
2
“crime
to
of
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Guidelines
violence”
section
is
7B1.1
defined
in
explains
Guidelines
That section provides as follows:
(a) The term “crime of violence” means any offense
under federal or state law, punishable by imprisonment
for a term exceeding one year, that —
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson,
extortion, involves use of explosives,
otherwise involves conduct that presents
serious potential risk of physical injury
another.
Paragraph
(a)(1)
of
section
4B1.2
is
commonly
or
or
a
to
known
as
the
“force clause,” and the portion of paragraph (a)(2) that starts
with “otherwise” is referred to as the “residual clause.”
See
United States v. Hemingway, 734 F.3d 323, 327 (4th Cir. 2013)
(employing
that
terminology
for
similar
statutory
provision).
In determining whether an offense is a crime of violence under
either
clause,
we
utilize
the
categorical
approach,
which
focuses solely on the elements of the offense, rather than on
the facts of the case.
See Carthorne, 726 F.3d at 511.
2.
The district court applied the foregoing legal framework
when
it
violation.
grade
A
sentenced
McMillian
for
his
supervised
release
The court determined that McMillian had committed a
violation
and
indicated
14
that
his
criminal
history
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category was V.
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For such a defendant, the Revocation Table
specifies a Guidelines range of 30 to 36 months. 5
As the court
also recognized, however, McMillian was subject to a statutory
maximum sentence of twenty-four months, pursuant to 18 U.S.C.
§ 3583(e)(3).
7B1.4(b)(1),
Accordingly,
the
twenty-four
under
month
Guidelines
statutory
maximum
section
sentence
was “substituted for the applicable range.”
McMillian
contends
that
the
district
court
misclassified
his violation as grade A, and thereby miscalculated the advisory
Guidelines range.
Specifically, he maintains that assault by
strangulation is not categorically a crime of violence, and that
the court thus should have classified his violation as grade B
rather
than
Guidelines
government,
grade
range
for
A.
Under
would
have
its
part,
that
been
18
scenario,
to
maintains
24
McMillian’s
months.
that
assault
The
by
strangulation qualifies as a crime of violence under the force
clause of Guidelines section 4B1.2.
As
McMillian
acknowledges,
contention in the district court.
he
failed
to
raise
this
As such, it is subject to
plain error review only, and McMillian must therefore show that
5
At the revocation hearing, the district court misstated
the range provided by the Revocation Table in Guidelines section
7B1.4 as 30 to 37 months, rather than 30 to 36 months.
That
misstatement had no impact on McMillian’s sentencing.
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it is “clear” or “obvious” that assault by strangulation is not
a crime of violence.
See Olano, 507 U.S. at 734.
3.
In support of his contention that assault by strangulation
is
not
a
crime
of
violence,
McMillian
relies
on
our
recent
decision in United States v. Vinson, 805 F.3d 120 (4th Cir.
2015).
In Vinson, we recognized that the “assault” element of
North Carolina’s assault offenses does not require the use or
attempted use of physical force, because a defendant can commit
an assault under North Carolina law by recklessly or carelessly
applying physical force.
538
S.E.2d
917,
923
Id. at 125-26 (citing State v. Jones,
(N.C.
2000)).
Under
the
law
of
this
circuit, the negligent or reckless application of force does not
constitute the “use” of force.
See id. at 125 (citing Garcia v.
Gonzales,
(4th
455
F.3d
465,
469
Cir.
2006)).
Our
Vinson
decision does not control in this case, however, because the
assault element addressed therein is only one element of the
offense of assault by strangulation.
As relevant here, Vinson
did not consider whether the infliction of physical injury by
strangulation — the other element of assault by strangulation —
entails the use of physical force.
McMillian contends, as he must, that one can inflict injury
by strangulation without using physical force.
In the context
of plain error review, we are content to assume that there is
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some
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scenario
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in
which
a
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person
could
commit
an
assault
by
strangulation without intentionally applying physical force, and
thus that the first prong of Olano has been satisfied.
United
States
v.
Godwin,
272
F.3d
659,
679
(4th
See
Cir.
2001)
(assuming that error was committed, so as to satisfy first prong
of Olano).
It is apparent, however, that McMillian has failed
to show that the assumed error is plain, as required by the
second prong of Olano.
Indeed, he has identified no authority —
state or federal — supporting his position that one can inflict
physical injury by strangulation without using physical force.
Cf. United States v. King, 628 F.3d 693, 700 (4th Cir. 2011)
(rejecting claim of plain error where defendant identified no
“binding
offered
precedent
any
supporting”
plausible
his
counterexample
position).
to
the
Nor
has
proposition
assault by strangulation requires the use of physical force. 6
6
he
that
We
At oral argument, McMillian offered two examples to
support his contention that assault by strangulation can be
committed without the use of physical force.
His first
hypothetical involves erotic asphyxiation, a practice in which
the supply of oxygen to the brain is restricted to increase
sexual gratification.
McMillian’s second hypothetical posits a
police officer who uses a chokehold to subdue a suspect, but
recklessly employs excessive force in doing so.
McMillian’s
hypotheticals both fail, however, because they involve the
intentional application — i.e., the use — of physical force.
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are therefore satisfied that McMillian has failed plain error
review. 7
C.
In
his
final
contention
of
error,
McMillian
faults
the
district court for failing to adequately explain the sentence it
imposed.
In particular, McMillian insists that the court did
not “address [his] nonfrivolous arguments for a lower sentence.”
See Br. of Appellant 26. 8
A district court sentencing a defendant for a supervised
release
violation
sentence.”
must
“adequately
explain
[its]
chosen
See United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010) (internal quotation marks omitted).
The failure
to do so constitutes procedural error.
The court’s
See id.
7
McMillian also contends that the offense of assault by
strangulation is not punishable by more than a year in prison.
That contention is without merit.
Since the North Carolina
legislature enacted the Justice Reinvestment Act in 2011, all
North
Carolina
felony
offenses
—
including
assault
by
strangulation — are subject to a maximum term of imprisonment of
at least thirteen months, “regardless of offense class or prior
record level.”
See United States v. Barlow, 811 F.3d 133, 137
(4th Cir. 2015).
8
We are satisfied that McMillian preserved his contention
that the district court failed to adequately address his
arguments for a lower sentence. See United States v. Lynn, 592
F.3d 572, 578 (4th Cir. 2010) (“By drawing arguments from § 3553
for a sentence different than the one ultimately imposed, an
aggrieved party sufficiently alerts the district court of its
responsibility
to
render
an
individualized
explanation
addressing those arguments, and thus preserves its claim.”).
18
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explanation, however, “need not be as detailed or specific when
imposing a revocation sentence as it must be when imposing a
post-conviction
omitted).
sentence.”
Moreover,
Montes-Pineda,
“in
as
Id.
we
(internal
recognized
determining
in
whether
quotation
United
there
marks
States
v.
been
an
has
adequate explanation, we do not evaluate a court’s sentencing
statements in a vacuum.”
Rather,
“[t]he
See 445 F.3d 375, 381 (4th Cir. 2006).
context
surrounding
a
district
court’s
explanation may imbue it with enough content for us to evaluate
both
whether
the
court
considered
whether it did so properly.”
Before
it
imposed
the
the
§ 3553(a)
factors
and
Id.
challenged
sentence,
the
district
court expressly acknowledged McMillian’s contention that, apart
from
the
incidents
complied
with
the
underlying
the
conditions
of
revocation
his
motion,
release.
See
he
had
J.A.
92
(“That’s correct, it was a year and a half into his supervision
and Officer Cooper said he hadn’t had any problems while he had
a
job,
etc.”).
The
court
then
emphasized,
however,
that
McMillian had “a long history of this type of conduct . . . in
his past.”
considered
sentence,
Id.
and
Thus, the record demonstrates that the court
rejected
deeming
his
greater significance.
confirm
that
McMillian’s
history
of
arguments
violent
for
conduct
a
to
lower
be
of
Moreover, other aspects of the record
McMillian’s
history
19
of
violence
was
a
primary
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Pg: 20 of 20
concern of the court throughout the hearing.
(reciting
McMillian’s
criminal
history,
See id. at 87
including
numerous
assault convictions); id. at 96 (recommending that McMillian “be
exposed
to
education
reject
the
most
possible”
McMillian’s
intense
while
anger
in
management
prison).
contention
that
training
Accordingly,
the
we
and
also
court
inadequately
reject
McMillian’s
explained its chosen sentence.
III.
Pursuant
to
the
foregoing,
we
contentions of error and affirm the judgment.
AFFIRMED
20
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