US v. Davin Zimmerman

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00115-CCE-1. Copies to all parties and the district court/agency. [999836758].. [15-4668]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4668

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVIN JAN-MICHAEL ZIMMERMAN,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:09-cr-00115-CCE-1)

Submitted:

May 26, 2016

Decided:

May 31, 2016

Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant.
Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Davin Jan-Michael Zimmerman appeals the 30-month sentence
imposed upon revocation of his term of supervised release.

The

revocation sentence reflected a term of 18 months’ imprisonment
upon the revocation of supervision on Counts 1, 2, 6, and 7 of his
original sentence and a consecutive 12 months’ imprisonment upon
the revocation of supervision of Count 3 of his original sentence.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious grounds for
appeal,

but

reasonable.

questioning

whether

the

sentence

imposed

was

Zimmerman was advised of his right to file a pro se

supplemental brief, but he did not file one.

We affirm.

We will not disturb a sentence imposed after revocation of
supervised release that is within the prescribed statutory range
and is not plainly unreasonable.

United States v. Crudup, 461

F.3d 433, 437-39 (4th Cir. 2006).

In making this determination,

“we

follow

generally

the

procedural

and

considerations” used in reviewing original sentences.

substantive
Id. at 438.

A sentence is procedurally reasonable if the district court
has considered the policy statements contained in Chapter Seven of
the Guidelines and the applicable 18 U.S.C. § 3553(a) (2012)
factors, id. at 440, and has adequately explained the sentence
chosen, though it need not explain the sentence in as much detail
as when imposing the original sentence. United States v. Thompson,
2

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595 F.3d 544, 547 (4th Cir. 2010).

A sentence is substantively

reasonable if the district court states a proper basis for its
imposition of a sentence up to the statutory maximum.
F.3d at 440.

Crudup, 461

If, based on this review, the appeals court decides

that the sentence is not unreasonable, it should affirm.

Id. at

439.
In the initial inquiry, we take a more deferential posture
concerning issues of fact and the exercise of discretion than when
we apply the reasonableness review to post-conviction Guidelines
sentences.
2007).

United States v. Moulden, 478 F.3d 652, 656 (4th Cir.

Only if we find the sentence unreasonable must we decide

whether it is “plainly” so.
Although

counsel

Id. at 657.

questions

whether

there

is

any

error

rendering Zimmerman’s sentence plainly unreasonable, he identifies
no such error.
Statement

The district court properly calculated the Policy

range

and

sentenced

Zimmerman

to

30

months’

imprisonment, a sentence within the Policy Statement range and
below the statutory maximum.

18 U.S.C. § 3583(e)(3) (2012); U.S.

Sentencing Guidelines Manual § 7B1.4(a); see United States v.
Johnson,

138

F.3d

115,

118-19

consecutive revocation sentences).
us

to

conclude

that

(4th

3

1998)

(upholding

Our review of the record leads

Zimmerman’s

unreasonable.

Cir.

sentence

is

not

plainly

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In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore

affirm.

This

court

requires

that

counsel

We

inform

Zimmerman, in writing, of the right to petition the Supreme Court
of the United States for further review.

If Zimmerman 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 of the motion was served on Zimmerman.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

this

court

are
and

argument would not aid the decisional process.
AFFIRMED

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