US v. Gene Patrick, No. 12-4488 (4th Cir. 2013)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4488 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GENE PATRICK, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:11-cr-00332-TDS-1) Submitted: December 14, 2012 Before KING and Circuit Judge. AGEE, Circuit Decided: Judges, and January 10, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Robert Ratliff, Mobile, Alabama, for Appellant. Ripley Rand, United States Attorney, Stephen T. Inman, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gene Patrick appeals the district court s order revoking his probation and sentencing him to twelve months of imprisonment. Patrick claims that his current sentence, when aggregated with the time he spent imprisoned as a condition of his probation, exceeds the applicable statutory maximum. Finding no error, we affirm. First, because Patrick did not properly preserve any of the issues he raises on appeal, our review is for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993); see United States v. Maxwell, 285 F.3d 336, 338 (4th Cir. 2002) (reviewing for plain error unpreserved claim that sentence following revocation of greater than authorized by statute). supervised release was To satisfy this standard Patrick must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. United States 2009). v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. Even if Patrick satisfies these requirements, correction of the error is only appropriate if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Massenburg, 564 F.3d at 343 (internal quotation marks omitted). The magistrate judge who initially sentenced Patrick was authorized to impose a term of probation of up to five 2 years, 18 U.S.C. § 3561(c)(2) (2006), and to include a number of discretionary conditions, including that Patrick remain in the custody of [the Bureau of Prisons] during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation or supervised release. 18 U.S.C. § 3563(b)(10) (2006). violation of his probation, Patrick s probation with the or Further, court without could upon Patrick s either continue extending the term or modifying the conditions or revoke Patrick s term of probation and resentence him. 18 U.S.C. § 3565(a) (2006). After choosing to revoke Patrick s probation following his second violation of its conditions, the court was required to resentence him under subchapter A, 18 U.S.C. §§ 3551-59 (2006), which outlines the general statutory provisions for imposing sentence. 18 U.S.C. § 3565(a)-(b). As we have previously held, resentencing under 18 U.S.C. § 3565(a)-(b) plainly permits a district court to begin the sentencing appropriate process under the anew and provisions to of impose subchapter any A. sentence United States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997); see also United States v. Tschebaum, 306 F.3d 540, 543-44 (8th Cir. 2002) (collecting cases). Accordingly, upon revoking Patrick s probation, the district court was permitted to sentence him to 3 any term maximum of imprisonment for his within original the violation twelve of statutory U.S.C. § 844(a). 21 month United States v. Penn, 17 F.3d 70, 73 (4th Cir. 1994); see also United States ( [C]ircuits v. Ray, have been 484 F.3d 1168, unanimous (9th Cir. 2007) concluding, in 1172 even after Booker, that a sentencing court may sentence a defendant who violates probation without being restricted by the original Sentencing Guidelines range applicable to his or her crime or a departure therefrom, subject at the upper end to the maximum statutory penalty that may be imposed for commission of the underlying offense. ) (internal quotation marks omitted). Further, Patrick has failed to cite any authority to support his contention that the district court s sentencing options were limited by the time he spent in the Bureau of Prisons custody as a condition of his probation. First, the court clearly modified Patrick s probation following his initial violation. Patrick s claim that this modification was in fact a revocation of his probation is not supported by the record. Nor is Patrick s citation to 18 U.S.C. § 3583(e)(3) (2006) relevant to our inquiry here. Finally, and although we generally do not consider arguments raised for the first time in a reply brief, United States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008), the district sentencing court credit was under without 18 authority U.S.C. 4 to § 3585(b) grant (2006). Patrick Thus Patrick s reliance on the dicta of United States v. Granderson, 511 U.S. 39 (1994), is unpersuasive. United States v. Wilson, 503 U.S. 329, 333 (1992). Accordingly, we conclude that the district court did not err in imposing Patrick s sentence and affirm the judgment below. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
