US v. Cecil White, No. 09-5187 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5187 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CECIL DEAN WHITE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (2:06-cr-00023-D-1) Submitted: August 31, 2010 Decided: October 22, 2010 Before MOTZ, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cecil Dean White appeals from his twenty-four month sentence imposed pursuant to the revocation of his supervised release. On appeal, White asserts that his sentence is procedurally and substantively plainly unreasonable because the district court failed to consider the mitigating circumstances, gave excessive violations, weight and to failed the to provide support for a major variance. A release sentence should statutory be maximum after affirmed is severity sufficiently of compelling if it not revocation is plainly within of supervised the applicable unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). making this determination, sentence is unreasonable. the We affirm. imposed and exaggerated we first Id. at 438. consider whether In the This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guideline sentences. 652, 656 (4th Cir. 2007). generally the procedural United States v. Moulden, 478 F.3d In making our review, we follow and substantive considerations that [are] employ[ed] in [the] review of original sentences, . . . with some unique necessary nature of modifications supervised to release Crudup, 461 F.3d at 438-39. 2 take into revocation account the sentences. A sentence procedurally Chapter imposed reasonable Seven policy if upon the revocation district statements and of court the 18 considered U.S.C. (2006) factors that it is permitted to consider. § 3583(e); Crudup, 461 F.3d at 438-40. revocation of release is release is the § 3553(a) See 18 U.S.C. A sentence imposed upon substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive sentence sentence is is sentence imposed, Crudup, 461 F.3d at 440. statutory maximum. the the not found unreasonable. procedurally Id. or up to the We will affirm if at 439. substantively Only if a unreasonable will we decide whether the sentence is plainly unreasonable. Id. [T]he court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum. When Id. imposing sentence, the district court must provide individualized reasoning. See United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The Carter rationale applies to a revocation hearings; however, court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Because White did not request a sentence from the one imposed, review is for plain error. 3 different See United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). To establish plain error, [White] must show that an error occurred, that the error was plain, substantial rights. 249 (4th Cir. correction that the error affected his United States v. Muhammad, 478 F.3d 247, 2007). of and the Even error if White remains makes within this [the discretion, which [the court] should not exercise showing, court s] . . . unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. marks and citation omitted). In the Id. (internal quotation sentencing context, an error affects substantial rights if the defendant can show that the sentence imposed was longer than that to which he would otherwise be subject. United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001). We conclude that White failed to make the requisite showings. His excuses for his admitted release violations fail to outweigh the fact that he repeatedly violated the terms of his supervised release. The district court considered White s excuses and rejected them. The court explicitly considered the Guidelines range (six to twelve months) as well as many of the statutory factors that arriving at a sentence. White s continuing it was permitted to consider when In this regard, the court mentioned criminal conduct, the leniency of the probation officer and the court in the past, the need to deter 4 future violations, while on supervised release, and his failure to take responsibility. In addition, the White s court unsatisfactory recommended that conduct White receive substance abuse treatment. Moreover, claims he raises. White faces a very heavy burden on the Even if he could show that his sentence was unreasonable, he would still need to show that it was plainly unreasonable. A sentence is plainly unreasonable if it run[s] afoul of clearly settled law. Thompson, 595 F.3d at 549. such White addition, has flatly because his failed to make sentence is reviewed a for showing. plain In error, White must also show that there is a reasonable probability that the claimed irregularity in sentencing affected his substantial rights and that any error affected the fairness and integrity of the judicial system. White s assertions of error illustrate essentially a disagreement with the district court s conclusions that his behavior constituted serious breaches of his release conditions. Even assuming rational minds could differ on whether the district court s conclusions were exaggerated, White cannot show that his substantial rights were affected or that the sentencing error was so egregious that it called into question the fairness of the sentencing system. Accordingly, we affirm White s sentence. We dispense with oral argument because the facts and legal contentions are 5 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6
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