US v. Markus McCormick

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00320-BO-1. Copies to all parties and the district court/agency. [999953409]. [16-4175]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4175

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKUS ODON MCCORMICK,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:10-cr-00320-BO-1)

Submitted:

October 7, 2016

Decided:

October 24, 2016

Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Jennifer C.
Leisten, Research & Writing Attorney, Raleigh, North Carolina,
for Appellant.
John Stuart Bruce, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Markus

Odon

McCormick

appeals

from

the

district

court’s

judgment revoking his supervised release and sentencing him to
50 months’ imprisonment.
sentence

is

plainly

McCormick argues on appeal that this

unreasonable

because

it

is

necessary to achieve the purposes of sentencing.

greater

than

We affirm.

“We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
‘plainly unreasonable.’”

United States v. Padgett, 788 F.3d

370, 373 (4th Cir.) (quoting United States v. Crudup, 461 F.3d
433, 437 (4th Cir. 2006)), cert. denied, 136 S. Ct. 494 (2015).
“When

reviewing

whether

a

revocation

sentence

is

plainly

unreasonable, we must first determine whether it is unreasonable
at all.”
2010).

United States v. Thompson, 595 F.3d 544, 546 (4th Cir.
In

making

such

a

determination,

“we

strike

a

more

deferential appellate posture than we do when reviewing original
sentences.”
omitted).

Padgett, 788 F.3d at 373 (internal quotation marks
“Nonetheless,

considerations
inform

our

that

review

guide
of

the

same

our

procedural

review

revocation

of

and

substantive

original

sentences

as

sentences

well.”

Id.

(internal quotation marks and alteration omitted).
A

supervised

release

revocation

sentence

is

procedurally

reasonable if the district court has considered the Sentencing
Guidelines’ Chapter Seven advisory policy statement range and
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the

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U.S.C.

§ 3553(a)

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(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, and has adequately
explained the sentence chosen, although it need not explain the
sentence

in

sentence.

as

much

detail

as

when

Thompson, 595 F.3d at 547.

imposing

an

original

A revocation sentence is

substantively reasonable if the district court states a proper
basis for concluding the defendant should receive the sentence
imposed, up to the statutory maximum.
Only

if

we

find

a

revocation

sentence

decide whether it is “plainly” so.
478

F.3d

652,

657

(4th

Cir.

Crudup, 461 F.3d at 440.
unreasonable

must

United States v. Moulden,

2007).

A

sentence

is

unreasonable if it is clearly or obviously unreasonable.
We

reject

McCormick’s

we

contention

that

his

plainly
Id.

sentence

is

greater than necessary to achieve the purposes of sentencing in
his case.

It essentially asks this court to substitute its

judgment for that of the district court.
have

weighed

imposed

the

relevant

§ 3553(a)

revocation

sentence,

factors
we

While this court may
differently

defer

to

the

had

it

district

court’s decision that an above-policy statement range sentence
of 50 months’ imprisonment achieved the purposes of sentencing
in McCormick’s case.

See Gall v. United States, 552 U.S. 38, 51

(2007)

that

(explaining

appellate

courts

“must

give

due

deference to the district court’s decision that the § 3553(a)
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factors, on a whole, justify” the sentence imposed).

In light

of the “extremely broad” discretion afforded to a district court
in determining the weight to be given each of the § 3553(a)
factors

in

imposing

sentence,

see

United

States

v.

Jeffery,

631 F.3d 669, 679 (4th Cir. 2011), and the deferential posture
we take in reviewing the imposition of a revocation sentence,
Padgett, 788 F.3d at 373, McCormick fails to establish that his
50-month prison term is substantively unreasonable. *
Accordingly,
We dispense

with

contentions

are

we
oral

affirm

the

argument

adequately

district
because

presented

in

court’s

judgment.

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

*

Near the end of his brief, McCormick appears to raise
procedural challenges to the 50-month sentence, arguing that the
district court failed to address his arguments in mitigation and
failed to explain adequately why the 50-month sentence was
sufficient.
We reject these challenges.
McCormick does not
specify
what
was
inadequate
about
the
district
court’s
explanation of the sentence.
Further, the district court’s
order detailing its reasons for imposing the sentence and its
comments at the revocation hearing make clear that it considered
both McCormick’s allocution and the arguments of McCormick’s
counsel in support of continued supervision.
The court viewed
McCormick’s allocution as having a “negative value” for
McCormick and found that counsel’s arguments did not outweigh
the considerations that supported imposition of the 50-month
sentence.

4