US v. Grady Rushing

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00192-MOC-1. Copies to all parties and the district court. [999966950]. [16-4007]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4007

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GRADY LEE RUSHING,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:08-cr-00192-MOC-1)

Submitted:

October 19, 2016

Before MOTZ and
Circuit Judge.

SHEDD,

Circuit

Decided:

Judges,

and

November 14, 2016

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Chiege O. Kalu Okwara, 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Unpublished opinions are not binding precedent in this circuit.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:
Grady

Lee

Rushing

appeals

the

district

court’s

judgment

revoking his supervised release and imposing a sentence of time
served, plus an additional four-year term of supervised release.
On appeal, Rushing assigns error to the district court’s refusal
to

eliminate

the

portion

mandating

reimbursement

appointed

attorney.

reasonableness

of

of

for

the

Rushing
the

his

original
costs

also

revocation

of

criminal
Rushing’s

challenges
sentence

judgment

in

the

court-

procedural

terms

of

the

adequacy of the district court’s explanation for the selected
term of supervised release.

For the reasons that follow, we

affirm.
Rushing

first

asserts

that,

pursuant

to

this

court’s

decision in United States v. Moore, 666 F.3d 313, 320-24 (4th
Cir. 2012) (holding that a fee-reimbursement order must be based
on the district court’s “finding that there are specific funds,
assets, or asset streams (or the fixed right to those funds,
assets or asset streams) that are (1) identified by the court
and (2) available to the defendant for the repayment of the
court-appointed attorneys’ fees”), the reimbursement provision
in

the

original

criminal

judgment

is

invalid,

and

that

the

district court erred in declining to excise this portion of that
judgment.
that

the

Assuming without deciding that this is correct and
reimbursement

order

would
2

not

stand

after

Moore,

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Rushing

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fails

proposition

to

identify

that

the

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any

legal

district

authority

court

the

alter

could

for

the

reimbursement order — which was part of the original criminal
judgment — in the context of adjudicating a supervised release
revocation petition.
170

(5th

Cir.

Cf. United States v. Willis, 563 F.3d 168,

2009)

(“It

is

by

now

well-established

that

a

defendant may not use the appeal of a revocation of supervised
release

to

challenge

an

underlying

conviction

or

original

sentence.”); United States v. Eskridge, 445 F.3d 930, 934 (7th
Cir.

2006)

correct

a

(explaining
final

that

judgment

in

“[a]
a

district

criminal

may

to

reflect

case

judge

still
the

sentence he actually imposed but he cannot change the sentence
he did impose even if the sentence was erroneous”).

We thus

reject Rushing’s first assignment of error.
Next,

Rushing

challenges

the

adequacy

of

the

district

court’s explanation for imposing an additional four-year term of
supervised release.
imposing

a

“A district court has broad discretion when

sentence

upon

revocation

of

supervised

release.”

United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).

This

court “will affirm a revocation sentence if it is within the
statutory

maximum

and

is

not

plainly

(internal quotation marks omitted).
revocation

sentence

is

plainly

unreasonable.”

“When reviewing whether a

unreasonable,

determine whether it is unreasonable at all.”
3

Id.

we

must

first

United States v.

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Thompson,
sentence

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595
is

F.3d

544,

546

procedurally

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(4th

Cir.

reasonable

2010).

if

the

A

revocation

district

court

adequately explains the sentence after considering the policy
statements in Chapter Seven of the Sentencing Guidelines and the
applicable 18 U.S.C. § 3553(a) (2012) factors.

See 18 U.S.C.

§ 3583(e) (2012); Thompson, 595 F.3d at 546-47.
The transcript of the revocation hearing reveals that the
district
release

court
on

imposed

Rushing

a

for

new,
two

four-year
main

term

reasons:

of
(1)

supervised
Rushing’s

demonstrable need for supervision and guidance as he adapted to
living a law-abiding life; and (2) to protect the public from
further

criminal

adjustment.

This

activity

by

Rushing

while

explanation

reflects

the

he

made

district

this

court’s

consideration of permissible factors, see 18 U.S.C. §§ 3583(e),
3553(a)(1),

(a)(2)(C),

and

more

than

satisfies

the

above

standard.
We

therefore

judgment.
legal
before

affirm

the

district

court’s

revocation

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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