US v. Rodriguez Smith, No. 09-5123 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5123 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RODRIGUEZ CHERONE SMITH, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:03-cr-00162-FDW-2) Submitted: July 9, 2010 Decided: July 20, 2010 Before MOTZ, GREGORY, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Ross H. Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Edward R. Ryan, Assistant United States Attorneys, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rodriguez Cherone Smith appeals the district court s judgment revoking his supervised release and sentencing him to nine months Smith s prison and two has filed a attorney California, there in are 386 no U.S. years brief of supervised pursuant to 738 (1967), asserting, in meritorious grounds for but appeal release. Anders his v. opinion, raising the issue of whether the district court s revocation sentence is plainly unreasonable. Smith was notified of his right to file a pro se supplemental brief but has not done so. We affirm. We will affirm a sentence imposed after revocation of supervised release if it is within the prescribed statutory range and not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). We first consider whether the sentence is procedurally or substantively unreasonable. at 438. Id. In this initial inquiry, we take a more deferential posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). Only if we find the sentence procedurally or substantively unreasonable must we decide whether it is plainly so. Id. at 657. While a district court must consider the Chapter Seven policy statements and the statutory factors applicable to revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006), 2 the court need not robotically tick through every subsection, and ultimately, the court has broad discretion to revoke the previous sentence and impose a term of imprisonment up to the statutory maximum. Id. at 656-57. Moreover, while a district court must provide a statement of reasons for the sentence, the court need not be as detailed or specific when imposing a revocation sentence as when imposing a post-conviction sentence. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We have reviewed the record and conclude that Smith s sentence is within plainly unreasonable. all four violations the prescribed statutory range and not At his revocation hearing, Smith admitted alleged by the probation officer. The district court properly calculated that Smith s policy statement range under U.S. Sentencing Guidelines Manual § 7B1.4(a) was five to eleven months based on Grade C violations and a criminal history category III, and the court considered the range along with applicable statutory factors in imposing its sentence. Although Smith requested a prison sentence of time served or the low end of the guideline range, and that no further supervised release term be imposed, the court reasonably determined a ninemonth sentence followed by two years of supervised release was appropriate based on Smith s repeated violations and his need for rehabilitation and intense supervision. 3 In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, believes but counsel that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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