US v. Roger Plumley

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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§ 3553(a)(2)(A),

which

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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

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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