US v. Raymond Roe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-00195-1 Copies to all parties and the district court/agency. [999948184].. [16-4254]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4254

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAYMOND D. ROE, a/k/a Rudy,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:09-cr-00195-1)

Submitted:

October 13, 2016

Decided:

October 17, 2016

Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christian M. Capece, Federal Public Defender, Jonathan D. Byrne,
Research and Writing Specialist, Rhett H. Johnson, Assistant
Federal
Public
Defender,
Charleston,
West
Virginia,
for
Appellant. Carol A. Casto, United States Attorney, Joseph F.
Adams, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Raymond
supervised

D.

Roe

release

appeals

and

from

imposing

a

the

order

24-month

revoking

his

sentence.

Roe

challenges the revocation, arguing that his conviction pursuant
to a guilty plea to a West Virginia charge of possession of
material depicting a minor engaged in sexually explicit conduct
did not prove a violation of state law.

He also claims that his

sentence is plainly unreasonable, contending that it was based
primarily on a prohibited factor.
We

review

a

district

We affirm.

court’s

decision

to

revoke

individual’s supervised release for abuse of discretion.
States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999).

an

United

To revoke

supervised release, a district court need only find a violation
of a condition of supervised release by a preponderance of the
evidence.

18

U.S.C.

§

3583(e)(3)

(2012);

Copley, 978 F.2d 829, 831 (4th Cir. 1992).

United

States

v.

This burden “simply

requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence.”

United States v.

Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation
marks omitted).
We review the district court’s factual findings for clear
error.
2010).

United States v. White, 620 F.3d 401, 410 (4th Cir.
A

factual

finding

is

clearly

erroneous

if,

after

reviewing all the evidence, we are “left with the definite and
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firm

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conviction

that

a

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mistake

has

been

committed.”

United

States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal
quotation marks omitted).

In West Virginia, a guilty plea is

treated as an admission by a defendant of factual guilt.

State

ex rel. Burton v. Whyte, 256 S.E.2d 424, 429 (W. Va. 1979).

We

have reviewed the record and conclude that the district court
did not clearly err when it found that the Government’s evidence
established that Roe violated his supervised release.
We also discern no error in the district court’s decision
to

impose

a

24-month

sentence.

We

will

affirm

a

sentence

imposed after revocation of supervised release if it is within
the prescribed statutory range and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 438-40 (4th Cir. 2006).
While a district court must consider the Chapter Seven policy
statements, U.S. Sentencing Guidelines Manual Ch. 7, Pt. B, and
the statutory requirements and factors applicable to revocation
sentences under § 3583(e) and 18 U.S.C. § 3553(a) (2012), the
district

court

ultimately

has

broad

discretion

to

revoke

supervised release and impose a term of imprisonment up to the
statutory maximum.
A

supervised

reasonable
advisory

if

policy

the

Crudup, 461 F.3d at 438-39.
release

revocation

district

statements

court
and

the

sentence
considered
§

3553(a)

is
the

procedurally
Chapter

factors

it

7
is

permitted to consider in a supervised release revocation case.
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See

18

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U.S.C.

§

3583(e);

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Crudup,

461

F.3d

at

439-40.

A

revocation sentence is substantively reasonable if the district
court stated a proper basis for concluding the defendant should
receive

the

sentence

Crudup,

461

F.3d

at

imposed,
440.

up

to

Only

if

the
a

statutory
sentence

maximum.
is

found

procedurally or substantively unreasonable will we “then decide
whether

the

sentence

is

plainly

unreasonable.”

Id.

at

439

(emphasis omitted).
While Roe contends that the court impermissibly relied on
the seriousness of the West Virginia offense in sentencing him,
that factor may be taken into consideration to a limited degree
and the record does not support that it was the determinative
factor underpinning the sentence.

Further, the court adequately

stated permissible reasons for the sentence, including that Roe
had a pattern of continuing criminal conduct when he was not
incarcerated and that Roe breached the court’s trust by seeking
to access child pornography on a public library computer shortly
after being released to probation.

The court also acknowledged

that the sentence was above the policy statement range but that
it was necessary in light of the approved § 3553(a) factors.
The court also rejected Roe’s argument that he should receive a
lenient sentence because the underlying behavior was allegedly
not as culpable as it could be for the state conviction.

We

have reviewed the record and considered the parties’ arguments
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and discern no sentencing error.

We therefore conclude that

Roe’s sentence is not plainly unreasonable.
Accordingly, we affirm the judgment order.

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

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