US v. Christopher Partlow, No. 09-4729 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4729 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER Christopher Wilson, MICHAEL Wilson, PARTLOW, a/k/a Chris Partlow, a/k/a a/k/a Chubby Partlow, a/k/a Chubby Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:97-cr-00184-FDW-19) Submitted: March 18, 2010 Decided: April 1, 2010 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Matthew R. Segal, Asheville, North Carolina, Elizabeth A. Blackwood, Research and Writing Attorney, Charlotte, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Christopher Michael Partlow appeals the district court s order revoking his supervised release and sentencing him to fifteen supervised months imprisonment release. On appeal, and ninety-six Partlow contends months that the district court s sentence was procedurally unreasonable, as it was based release on was two not erroneous punitive premises: in nature, (1) and that (2) supervised that lowering Partlow s term of supervised release would create an unwarranted disparity, as such reductions were not available to defendants who did not violate their supervised release terms. Generally, we will affirm a sentence We affirm. imposed after revocation of supervised release if it is within the applicable statutory maximum and is not plainly unreasonable. See United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). However, here, after the district court explained the sentence it intended to impose, it specifically asked counsel whether they saw any legal reason why the sentence could not be imposed. Though Partlow s counsel thus had the opportunity to object to the district court s explanation of the basis for its proposed sentence, they failed to do so. plain error. Accordingly, our review is for Fed. R. Crim. P. 52(b); United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). 2 To establish plain error, Partlow must show that: (i) an error occurred; (ii) the error is plain; and (iii) the error affected his substantial rights. See United States v. Smith, 441 F.3d 254, 271 (4th Cir. 2006). An error affects substantial rights if it was so prejudicial as to affect the outcome of the proceedings. United States v. McClung, 483 F.3d 273, 276 (4th Cir. 2007). Even if Partlow can establish plain error, however, correction of the error remains within our discretion and should not be exercised unless the error seriously affects the fairness, reputation of judicial proceedings. integrity, or public Id. Here, we find that Partlow s first assignment of error is without merit. court mistakenly Though Partlow contends that the district believed that supervised release was punishment, this contention is belied by the record. not a Instead, the district court correctly recognized that supervised release had both punitive and rehabilitative aspects, and was therefore not wholly counsel. punitive Indeed, transitional in the purposes the manner district behind described court s supervised by notation release Partlow s of mirrors the the congressional intent previously recognized by the Supreme Court: Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative from ends, distinct 3 those served by incarceration. (2000). United States Accordingly, procedural error in the v. Johnson, district noting the 529 court U.S. did 53, not rehabilitative 59 commit aspects of supervised release. Partlow next contends that the district court erred in noting that disparities it that sought might to avoid arise if it unwarranted sentencing changed supervised the release terms for violators, while those individuals who did not violate were forced to serve the full length of their term. Partlow argues that, as the district court failed to recognize that an individual under a term of supervised release may seek a reduction in supervised his term release, after this the expiration misstatement of of the one year of law rendered Partlow s sentence procedurally unreasonable. However, account for even applicable if the district supervised court release law did in not fully evaluating Partlow s argument, Partlow fails to demonstrate that any error affected his substantial rights. The district court listed numerous reasons for imposing the sentence it did, including the nature of the crimes committed, the need for deterrence, and the need to protect the public. Accordingly, because Partlow fails to demonstrate that his substantial rights were affected by this alleged error, we find his argument unavailing. 4 Therefore, court. legal before we affirm the judgment of the district We dispense with oral argument because the facts and contentions the court are adequately and argument expressed would not in aid the the materials decisional process. AFFIRMED 5
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