US v. Barry Thompson, No. 10-4350 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4350 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BARRY GLEN THOMPSON, a/k/a Berry G. Thompson, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg. Joseph R. Goodwin, Chief District Judge. (6:95-cr-00115-1) Submitted: July 23, 2010 Decided: August 9, 2010 Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Lex A. Coleman, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Monica K. Schwartz, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Barry Glen Thompson appeals the eighteen-month sentence imposed by the district court upon revocation of his supervised release. We previously vacated the sentence and remanded for resentencing because the district court failed to explain adequately choice of an eighteen-month term of United States v. Thompson, 595 F.3d 544 (4th Cir. imprisonment. 2010). its On remand, the district court provided its reasoning and re-imposed sentence the is same sentence. unreasonable Thompson because the contends district that court the plainly erred on remand by incorrectly stating that he was exposed to a statutory maximum sentence of three years imprisonment, rather than two years. We affirm. We will affirm a sentence imposed after revocation of supervised release if it is within the maximum and is not plainly unreasonable. applicable statutory Thompson, 595 F.3d at 546; United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). However, only if we conclude that a sentence is procedurally or substantively unreasonable whether the sentence is plainly unreasonable. will we consider Crudup, 461 F.3d at 439. At the first sentencing hearing, the district court correctly stated the statutory maximum of two years, then proceeded to impose a sentence of eighteen months imprisonment. 2 On remand, the statutory maximum was never in dispute. The court misspoke when it stated that the maximum was three years rather than two years; however, the court s explanation for the sentence reveals that it did not reconsider the eighteen-month sentence on remand, but simply provided an explanation for the sentence as directed. maximum was error; The court s misstatement of the statutory however, the error did not affect the sentence or Thompson s substantial rights. See United States v. Olano, (stating 507 U.S. 725, 732-37 (1993) standard). Therefore, although Thompson has identified a procedural error, the sentence was not unreasonable. Accordingly, district facts court. and materials legal before We we affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 3
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