US v. Roger Plumley


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:05-cr-00224-2. Copies to all parties and the district court/agency. [1000033270].. [16-4534]

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Appeal: 16-4534 Doc: 21 Filed: 03/01/2017 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4534 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROGER PLUMLEY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:05-cr-00224-2) Submitted: January 26, 2017 Decided: March 1, 2017 Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing Specialist, Lex A. Coleman, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Carol A. Casto, United States Attorney, Miller Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4534 Doc: 21 Filed: 03/01/2017 Pg: 2 of 5 PER CURIAM: The release district and court sentenced revoked him to months’ supervised release. 8 Roger months’ Plumley’s supervised imprisonment Plumley appeals. and 50 For the following reasons, we affirm. We will affirm a revocation sentence if it is within the statutory maximum and not plainly unreasonable. United States v. Padgett, 788 F.3d 370, 373 (4th Cir.), cert. denied, 136 S. Ct. 494 (2015). the sentence Under this standard, we first consider whether is procedurally or substantively unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In making this inquiry, “we strike a more deferential appellate posture than we do when reviewing original sentences.” Padgett, 788 F.3d at 373 (internal quotation marks omitted). A revocation sentence is procedurally reasonable if the district court considered the policy statements in Chapter Seven of the Sentencing Guidelines Manual, the policy statement range, and the 18 U.S.C. § 3553(a) U.S.C. § 3583(e) (2012). (2012) Id. factors identified in 18 Chapter Seven directs district courts to “sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violator.” violation and the criminal history of the U.S. Sentencing Guidelines Manual ch.7, pt. A(3)(b) (2016). 2 Appeal: 16-4534 Doc: 21 Filed: 03/01/2017 Pg: 3 of 5 Section 3583(e) identifies several § 3553(a) factors to be considered by the sentencing court, including the nature and seriousness of the characteristics, offense, the need the for deterrence treatment, and the sentencing range. § 3553(a)(2)(A), which refers defendant’s to or history and correctional The section does not cite “the need for the sentence imposed to . . . reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” A 18 U.S.C. § 3583(e). sentence is substantively reasonable if court adequately identified a proper basis for it. F.3d at 438. the district Crudup, 461 We presume reasonable a sentence within the policy statement range. Id. “Only if we find the sentence unreasonable must we decide whether it is plainly so.” 640 (4th Cir. 2013) United States v. Webb, 738 F.3d 638, (internal quotation marks omitted). A plainly unreasonable sentence refers to a sentence with clear or obvious error. See Crudup, 461 F.3d at 439. We reject Plumley’s claim that the district court imposed a procedurally sentencing unreasonable factor sentence Plumley’s when repeated conditions of his supervised release. it considered violations of as a the According to Plumley, when the court considered that factor, it disregarded Chapter Seven and impermissibly relied on the need for punishment under 3 Appeal: 16-4534 Doc: 21 Filed: 03/01/2017 § 3553(a)(2)(A), which Pg: 4 of 5 contains sentencing factors not identified in § 3583(e). The law and record do not support Plumley’s argument. Chapter Seven does not bar the district court from considering the seriousness of the offense; it merely limits the importance of that factor in comparison with a defendant’s breach of trust. See USSG ch.7, pt. A(3)(b). district court may not We have held that “although a impose a revocation sentence based predominately on . . . the need for the sentence to promote respect for the law and provide just punishment, . . . mere reference to such considerations does not render a revocation sentence procedurally unreasonable when those factors are relevant to, and considered in conjunction with, the enumerated § 3553(a) factors.” Here, the Webb, 738 F.3d at 642. record shows that the district court did not impose its revocation sentence primarily to punish Plumley. The court considered several factors identified in § 3583(e). We also substantively overcome the conclude that reasonable the sentence. presumption of district court Plumley reasonableness has imposed a failed to afforded his sentence, which falls within the policy statement range. See Crudup, 461 F.3d at 438. Because the district court did not impose an unreasonable sentence, we affirm its judgment. 4 We dispense with oral Appeal: 16-4534 Doc: 21 Filed: 03/01/2017 Pg: 5 of 5 argument because the facts and legal contentions are adequately presented in the material before this court and argument would not aid the decisional process. AFFIRMED 5

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