US v. Larry Weaver, No. 09-4735 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4735 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LARRY WEAVER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:03-cr-00394-JRS-22) Submitted: August 12, 2010 Before WILKINSON and Senior Circuit Judge. DUNCAN, Decided: Circuit Judges, August 20, 2010 and HAMILTON, Affirmed by unpublished per curiam opinion. Edwin F. Brooks, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Roderick C. Young, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Larry Weaver pled guilty in December 2003 to one count of conspiracy to possess with the intent to distribute and to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846 imprisonment, release. (2006). followed by He was sentenced a five-year term to of 135 months supervised The prison term was subsequently reduced to sixty- seven months imprisonment as a result of Weaver s substantial assistance to the Government, see Fed. R. Crim. P. 35(b), and then to time served as a result of a retroactive amendment to the Sentencing Guidelines, see 18 U.S.C. § 3582(c)(2) (2006). Weaver began serving his term of supervised release in July 2008. Between March and May 2009, however, Weaver violated the conditions of his supervised release by failing to submit to urinalysis testing on eight occasions and pleading guilty to misdemeanor assault in state court. violations at the revocation Weaver admitted to these hearing. The district court revoked Weaver s supervised release and sentenced him to thirtysix months imprisonment, supervised release. month prison followed by a three-year term of Weaver appeals, arguing that the thirty-six sentence is plainly unreasonable because the district court failed to consider applicable 18 U.S.C. § 3553(a) (2006) factors and relied on improper considerations in imposing the sentence. 2 A district court has broad discretion to impose sentence upon revoking a defendant s supervised release. States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). affirm if the sentence is within the applicable maximum and is not plainly unreasonable. Crudup, 461 F.3d determining whether unreasonable, procedurally 439-40 first considerations the generally that we Cir. sentence assess We will statutory 2006). is In plainly sentence in for procedural the employ United United States v. (4th revocation follow[ing] original sentences. A 437, a we unreasonableness, substantive 433, a and our review of Id. at 438. supervised reasonable release if the revocation district sentence court is considered the U.S. Sentencing Guidelines Manual Chapter 7 policy statements and the 18 U.S.C. § 3553(a) factors that it is permitted to consider in a supervised release revocation case. See 18 U.S.C.A. § 3583(e)(3) (West Supp. 2010); Crudup, 461 F.3d at 440. Although the court need not explain the reasons for imposing a revocation sentence in as much detail as when it imposes an original sentence, it still must provide a statement of reasons for the sentence imposed. Thompson, 595 F.3d at 547 (internal quotation marks omitted). A revocation sentence is substantively reasonable if the district court stated a proper basis for concluding the defendant should receive the sentence 3 imposed, up to the statutory maximum. Only if a sentence unreasonable will is we plainly unreasonable. After found then Crudup, 461 F.3d at 440. procedurally decide whether or substantively the sentence is Id. at 439 (emphasis omitted). review of the record, we conclude that the thirty-six month prison sentence, although above the advisory policy statement range of five to eleven months imprisonment, is not unreasonable. within the It is undisputed that the sentence falls applicable § 3583(e)(3). statutory maximum. See 18 U.S.C.A. The district court considered the advisory policy statement range and the argument of Weaver s counsel. It is apparent that the court considered relevant § 3553(a) factors, addressing on the record the nature and circumstances of Weaver s violative behavior and the need for the sentence to protect the public from further crimes by Weaver. § 3553(a)(1), (2)(C). See 18 U.S.C. The court s comments also indicate that it imposed a sentence above the policy statement range as a result of treatment. Weaver s breach of trust, despite prior lenient See USSG Ch. 7, Pt. A, introductory cmt. 3(b) ( [A]t revocation the [district] court should sanction primarily the defendant s breach of trust. ). court adequately thirty-six month explained prison considerations in doing so. We conclude that the district its rationale sentence and for relied imposing on the proper Based on the broad discretion that 4 a district court has to revoke a term of supervised release and impose a prison term up to and including the statutory maximum, Weaver s sentence is not unreasonable. Therefore, we conclude that Weaver s sentence is not plainly unreasonable. See Crudup, 461 F.3d at 438-39. Accordingly, we affirm the district court s order revoking Weaver s supervised release and imposing a thirty-six month prison release. legal before sentence and a three-year term of supervised We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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