US v. Wayne Lewi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to withdraw/relieve/substitute counsel [999911515-2] Originating case number: 3:04-cr-00367-HEH-1 Copies to all parties and the district court/agency. [999956268].. [16-4030]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4030

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE L. LEWIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:04-cr-00367-HEH-1)

Submitted:

August 12, 2016

Decided:

October 27, 2016

Before WILKINSON, TRAXLER, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Valencia D. Roberts, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Erik Sean
Siebert, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wayne L. Lewis pled guilty to possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841 (2012),
and possession of a firearm in furtherance of a drug trafficking
crime,

in

violation

of

18

U.S.C.

§ 924(c)

(2012),

and

was

sentenced in 2005 to 120 months’ imprisonment and 4 years of
supervised release.

Lewis completed his term of incarceration

and began his term of supervised release.

While on release,

Lewis was convicted in state court of possession of heroin and
pled guilty in the district court to aiding and abetting Hobbs
Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (2012).
Lewis was sentenced to 71 months’ imprisonment and 3 years of
supervised

release

for

the

Hobbs

Act

robbery.

Lewis

subsequently admitted the violations alleged against him in the
revocation

petition,

and

the

district

court

revoked

his

supervised release and sentenced him to 6 months’ imprisonment,
to be served consecutively to the sentence imposed for the Hobbs
Act robbery.

Lewis now appeals from the revocation order.

Counsel has filed a brief pursuant to Anders v. California,
386

U.S.

grounds

738
for

revocation

(1967),

stating

appeal

but

sentence

is

that

there

questioning

plainly

are

no

whether

unreasonable

meritorious
the

because

6-month
it

was

ordered to run consecutively to Lewis’ sentence in the Hobbs Act
robbery case.

Lewis was informed of his right to file a pro se
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supplemental brief, but he has not done so.
not file a brief.
“A

We affirm.

district

sentence

upon

The Government did

court

has

revocation

broad
of

discretion

supervised

when

imposing

release.”

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

a

United

A revocation

sentence that is both within the applicable statutory maximum
and

not

United

“plainly
States

v.

unreasonable”
Padgett,

will

788

be

F.3d

cert. denied, 136 S. Ct. 494 (2015).

affirmed

370,

373

on
(4th

appeal.
Cir.),

In determining whether a

revocation sentence is plainly unreasonable, this court assesses
it for reasonableness, utilizing “the procedural and substantive
considerations”
sentence.

employed

in

evaluating

an

original

criminal

United States v. Crudup, 461 F.3d 433, 438 (4th Cir.

2006).
A

revocation

district

court

sentence

has

is

procedurally

considered

both

the

reasonable
policy

if

the

statements

contained in Chapter Seven of the Sentencing Guidelines and the
18 U.S.C. § 3553(a) (2012) factors it is permitted to consider
in a supervised release revocation case, see 18 U.S.C. § 3583(e)
(2012); Crudup, 461 F.3d at 439-40.

The district court also

must provide an explanation for the sentence chosen, although
this explanation “need not be as detailed or specific” as is
required for an original sentence.
595 F.3d 544, 547 (4th Cir. 2010).
3

United States v. Thompson,

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A revocation sentence is substantively reasonable if the
district

court

states

a

proper

basis

for

defendant should receive the sentence imposed.
at 440.

concluding

the

Crudup, 461 F.3d

Only if we find a sentence unreasonable must we decide

whether it is “plainly” so.

Id. at 439.

A sentence is plainly

unreasonable if it is clearly or obviously unreasonable.
Applying

these

reasonableness

of

principles,
Lewis’

counsel’s

sentence

fails.

challenge
In

Id.
to

imposing

the
a

consecutive sentence, the district court deferred to the policy
statement

set

forth

in

U.S.

Sentencing

Guidelines

Manual

§ 7B1.3(f), p.s., which states that any prison term imposed on
revocation of supervised release “shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant
is serving, whether or not the sentence of imprisonment being
served

resulted

from

the

conduct

that

revocation of . . . supervised release.”
deference

to

proper.

See

this

policy

Thompson,

statement,
595

F.3d

is

basis

of

the

The district court’s

while

at

the

547;

not
see

required,
also

was

United

States v. Moulden, 478 F.3d 652, 656-57 (4th Cir. 2007).
To the extent counsel suggests that imposing a consecutive
sentence was substantively unreasonable in light of the parties’
agreement that a concurrent sentence was warranted and because
Lewis faced a 71-month prison term for the Hobbs Act robbery,
this argument is also without merit.
4

It ignores the established

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principle that a revocation sentence is intended to punish the
defendant’s
release,

failure

which

is

to

abide

separate

by

the

and

terms

his

supervised

from

distinct

of

the

punishment

imposed for any underlying criminal conduct.

Crudup, 461 F.3d

at

revocation

437-38

(“‘[T]he

sentence

imposed

upon

[is]

intended to sanction the violator for failing to abide by the
conditions

of

the

ch. 7,

A,

introductory

pt.

original)).
release

court-ordered

supervision.’”

cmt.

3(b))

(quoting USSG

(second

alteration

in

Lewis admitted both of the violations of supervised

alleged

in

the

revocation

petition,

one

of

which

involved the crime of possession of heroin and the other of
which

involved

robbery.

the

crime

of

interference

with

commerce

by

These violations reflect Lewis’ serious disregard for

the terms of his supervision.
comments

make

clear

that

it

The district court’s sentencing
relied

on

the

need

to

sanction

Lewis’ breach of trust in violating the terms of supervision and
the nature and circumstances of his violative behavior and his
history

and

concurrent

characteristics

sentence

and

in

rejecting

imposing

a

the

request

consecutive

for

6-month

a

one.

See 18 U.S.C. § 3553(a)(1); USSG ch. 7, pt. A, introductory cmt.
3(b); USSG § 7B1.3(f), p.s.
justified

the

selected

Because the district court amply

sentence

—

which

fell

below

both

the

statutory maximum and the advisory policy statement range — and

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relied on proper considerations in imposing it, we discern no
substantive unreasonableness in this sentence.
In

accordance

remainder

of

the

with

Anders,

record

in

we

this

meritorious grounds for appeal.

also
case

have
and

reviewed

have

found

the
no

We therefore deny counsel’s

motion to withdraw from representation and affirm the district
court’s order.

This court requires that counsel inform Lewis,

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

If Lewis 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 thereof was served on Lewis.
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

6