US v. Misty Grafton


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:13-cr-00034-JPB-JSK-4. Copies to all parties and the district court. [999719974]. [15-4328]

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Appeal: 15-4328 Doc: 32 Filed: 12/17/2015 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4328 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MISTY AUTUMN GRAFTON, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, District Judge. (2:13-cr-00034-JPB-JSK-4) Submitted: November 20, 2015 Decided: December 17, 2015 Before DUNCAN, DIAZ, and HARRIS, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Stephen G. Jory, MCNEER, HIGHLAND, MCMUNN & VARNER, L.C., Elkins, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Tara N. Tighe, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4328 Doc: 32 Filed: 12/17/2015 Pg: 2 of 4 PER CURIAM: Misty Autumn Grafton appeals the district court’s judgment sentencing her to 37 months’ imprisonment following revocation of her probation. is plainly On appeal, Grafton argues that her sentence unreasonable. We vacate Grafton’s sentence and remand for resentencing. We will probation if affirm it is a sentence within “plainly unreasonable.” the imposed after statutory revocation maximum and is of not United States v. Moulden, 478 F.3d 652, 656-57 (4th Cir. 2007). When reviewing whether a revocation sentence is plainly unreasonable, we first assess the sentence for unreasonableness, “follow[ing] generally the procedural and substantive considerations original sentences.” (4th Cir. we employ in our review of United States v. Crudup, 461 F.3d 433, 438 2006). procedurally that A reasonable probation if the revocation district court sentence is considers the Chapter Seven advisory policy statement range and the 18 U.S.C. § 3553(a) (2012) factors. See 18 U.S.C. § 3565(a) (2012); Moulden, 478 F.3d at 657. Here, although the district court considered the § 3553(a) factors, it failed to calculate and indicate consideration of the applicable policy statement range. We therefore conclude that Grafton’s sentence is procedurally unreasonable. 2 Appeal: 15-4328 Doc: 32 Having Filed: 12/17/2015 found the Pg: 3 of 4 sentence unreasonable, whether it is plainly unreasonable. sentence is plainly we assess next “To determine whether a unreasonable, this Court looks to definition of ‘plain’ used in plain-error analysis.” the United States v. Thompson, 595 F.3d 544, 547–48 (4th Cir. 2010). “For a sentence to be plainly unreasonable, . . . it must run afoul of clearly settled law.” Id. at 548. The district court’s obligation to consider the advisory policy statement range is settled law in this circuit. 478 F.3d at 657. advisory policy Moulden, Thus, the court’s failure to consider the statement range renders Grafton’s sentence plainly unreasonable. Because Grafton did not preserve this claim for appellate review, our review is for plain error. 52(b). See Fed. R. Crim. P. To establish plain error, Grafton must demonstrate that (1) the district court committed an error; (2) the error was plain; and (3) the error affected her substantial rights. Henderson v. United States, 133 S. Ct. 1121, 1126 (2013). Even if will these “exercise requirements [its] are discretion met, to however, correct the this error Court only if it seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation marks omitted). 3 Appeal: 15-4328 Doc: 32 Filed: 12/17/2015 Pg: 4 of 4 As stated, we recognize a sentencing error and find the sentence to be plainly unreasonable because it runs afoul of clearly established law. 461 F.3d at 439. See Moulden, 478 F.3d at 656; Crudup, Additionally, because the sentence imposed by the district court was well above the advisory policy statement range calculated by the probation officer, Grafton’s substantial rights were affected by the error. the district statement term. court range, it calculated might have We cannot tell whether, had and given considered Grafton a the policy lower prison See Thompson, 595 F.3d at 548. Accordingly, we vacate remand for resentencing. Grafton’s revocation sentence and 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. VACATED AND REMANDED 4

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