US v. Brian Coles, No. 08-4658 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4658 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN TERRANCE COLES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:03-cr-00346-REP-1) Submitted: April 8, 2009 Decided: April 29, 2009 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brian order revoking twenty-seven Terrance his Coles appeals supervised months release imprisonment the and on district court s sentencing finding that him to Coles embezzled money from his employer in violation of the terms of his supervised release. On appeal, Coles argues that the district court erred in finding that he had embezzled money and that his sentence is therefore plainly unreasonable. We affirm. After considering the applicable 18 U.S.C. § 3553(a) (2006) factors, a district court may revoke a term of supervised release on finding by a preponderance of the evidence that the defendant violated a condition of supervised release. § 3583(e)(3) (2006). 18 U.S.C. We review the district court s factual determinations for clear error. See United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). Here, the district court did not err in finding, by a preponderance of the evidence, that Coles embezzled money from his employer, Carlton Jackson, thereby violating a condition of his supervised release. The evidence was uncontroverted that Coles directed that a commission payment of approximately $6,700 owed to his employer be sent instead to him. Indeed, he admitted doing so, and agreed, but failed, to return the money. The Government also introduced evidence that Coles arranged to receive another approximately $16,000 in commissions 2 meant for loan officers at Jackson s branch office. Though Coles s counsel argued that Coles was entitled to the money as commissions for loans he had without factual support. clear error in originated, this contention is As the district court did not commit accepting as credible the testimony of the Government s witnesses, and the evidence submitted before the district court $23,000 owed established to Jackson that or Coles other embezzled approximately individuals employed by Jackson, the district court did not err in finding that Coles violated a condition of his supervised release. Coles also challenges his sentence. We will affirm a sentence imposed after revocation of supervised release if it is within the applicable unreasonable. statutory maximum and is not plainly See United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). This court first assesses the sentence for unreasonableness, follow[ing] generally the procedural and substantive considerations that we employ in our review of original sentences, . . . with some necessary modifications to take into revocation account the sentences. unique Id. nature at of 438-39. supervised If we sentence is not unreasonable, we will affirm it. release conclude a Id. at 439. It is only if we find a sentence procedurally or substantively unreasonable that we must decide 3 whether the sentence is plainly unreasonable. Id.; see United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008). Although the district court must consider the Chapter 7 policy statements of the United States Sentencing Guidelines Manual and the requirements of 18 U.S.C. § 3583(e) (2006), the [district] court ultimately has broad discretion to revoke [the] previous sentence and impose a term of imprisonment up to the statutory maximum. Crudup, 461 F.3d at 439 (internal quotation marks and citations omitted). provide sufficient Though a sentencing court must explanation of the sentence to allow effective review of its reasonableness on appeal, the court need not robotically tick through § 3553(a) s every subsection. United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (probation revocation) (quoting United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006)). We find that Coles s sentence is not plainly unreasonable. The district court sentenced Coles to twenty- seven imprisonment, months statute. the 18 U.S.C. § 3583(e)(3). maximum allowable under the A review of the record makes it clear that the court adequately considered the applicable § 3553(a) factors. is warranted by First, the court stated that the sentence virtue of the nature of [Coles s] original offense, and commented on the negligible deterrent effect of Coles s prior sentences. The court 4 also cited the need to protect the public from district court sentenced sentence, and adequately Coles s Coles future offenses. As the to the statutory maximum justified its sentence, Coles s sentence is not unreasonable, much less plainly so. Accordingly, we affirm the judgment of the district court. We deny Coles s motion to file a pro se supplemental brief. We dispense with oral argument as the facts and legal contentions are adequately presented in the materials before the court, and further argument would not aid the decisional process. AFFIRMED 5
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