US v. Wayne Lewis, No. 16-4030 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4030 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNE L. LEWIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:04-cr-00367-HEH-1) Submitted: August 12, 2016 Decided: October 27, 2016 Before WILKINSON, TRAXLER, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Appellate Attorney, Valencia D. Roberts, Assistant Federal Public Defender, Alexandria, Virginia, for Appellant. Erik Sean Siebert, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Wayne L. Lewis pled guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 (2012), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2012), and was sentenced in 2005 to 120 months’ imprisonment and 4 years of supervised release. Lewis completed his term of incarceration and began his term of supervised release. While on release, Lewis was convicted in state court of possession of heroin and pled guilty in the district court to aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (2012). Lewis was sentenced to 71 months’ imprisonment and 3 years of supervised release for the Hobbs Act robbery. Lewis subsequently admitted the violations alleged against him in the revocation petition, and the district court revoked his supervised release and sentenced him to 6 months’ imprisonment, to be served consecutively to the sentence imposed for the Hobbs Act robbery. Lewis now appeals from the revocation order. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. grounds 738 for revocation (1967), stating appeal but sentence is that there questioning plainly are no whether unreasonable meritorious the because 6-month it was ordered to run consecutively to Lewis’ sentence in the Hobbs Act robbery case. Lewis was informed of his right to file a pro se 2 supplemental brief, but he has not done so. not file a brief. “A We affirm. district sentence upon The Government did court has revocation broad of discretion supervised when imposing release.” States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). a United A revocation sentence that is both within the applicable statutory maximum and not United “plainly States v. unreasonable” Padgett, will 788 be F.3d cert. denied, 136 S. Ct. 494 (2015). affirmed 370, 373 on (4th appeal. Cir.), In determining whether a revocation sentence is plainly unreasonable, this court assesses it for reasonableness, utilizing “the procedural and substantive considerations” sentence. employed in evaluating an original criminal United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). A revocation district court sentence has is procedurally considered both the reasonable policy if the statements contained in Chapter Seven of the Sentencing Guidelines and the 18 U.S.C. § 3553(a) (2012) factors it is permitted to consider in a supervised release revocation case, see 18 U.S.C. § 3583(e) (2012); Crudup, 461 F.3d at 439-40. The district court also must provide an explanation for the sentence chosen, although this explanation “need not be as detailed or specific” as is required for an original sentence. 595 F.3d 544, 547 (4th Cir. 2010). 3 United States v. Thompson, A revocation sentence is substantively reasonable if the district court states a proper basis for defendant should receive the sentence imposed. at 440. concluding the Crudup, 461 F.3d Only if we find a sentence unreasonable must we decide whether it is “plainly” so. Id. at 439. A sentence is plainly unreasonable if it is clearly or obviously unreasonable. Applying these reasonableness of principles, Lewis’ counsel’s sentence fails. challenge In Id. to imposing the a consecutive sentence, the district court deferred to the policy statement set forth in U.S. Sentencing Guidelines Manual § 7B1.3(f), p.s., which states that any prison term imposed on revocation of supervised release “shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that revocation of . . . supervised release.” deference to proper. See this policy Thompson, statement, 595 F.3d is basis of the The district court’s while at the 547; not see required, also was United States v. Moulden, 478 F.3d 652, 656-57 (4th Cir. 2007). To the extent counsel suggests that imposing a consecutive sentence was substantively unreasonable in light of the parties’ agreement that a concurrent sentence was warranted and because Lewis faced a 71-month prison term for the Hobbs Act robbery, this argument is also without merit. 4 It ignores the established principle that a revocation sentence is intended to punish the defendant’s release, failure which is to abide separate by the and terms his supervised from distinct of the punishment imposed for any underlying criminal conduct. Crudup, 461 F.3d at revocation 437-38 (“‘[T]he sentence imposed upon [is] intended to sanction the violator for failing to abide by the conditions of the ch. 7, A, introductory pt. original)). release court-ordered supervision.’” cmt. 3(b)) (quoting USSG (second alteration in Lewis admitted both of the violations of supervised alleged in the revocation petition, one of which involved the crime of possession of heroin and the other of which involved robbery. the crime of interference with commerce by These violations reflect Lewis’ serious disregard for the terms of his supervision. comments make clear that it The district court’s sentencing relied on the need to sanction Lewis’ breach of trust in violating the terms of supervision and the nature and circumstances of his violative behavior and his history and concurrent characteristics sentence and in rejecting imposing a the request consecutive for 6-month a one. See 18 U.S.C. § 3553(a)(1); USSG ch. 7, pt. A, introductory cmt. 3(b); USSG § 7B1.3(f), p.s. justified the selected Because the district court amply sentence — which fell below both the statutory maximum and the advisory policy statement range — and 5 relied on proper considerations in imposing it, we discern no substantive unreasonableness in this sentence. In accordance remainder of the with Anders, record in we this meritorious grounds for appeal. also case have and reviewed have found the no We therefore deny counsel’s motion to withdraw from representation and affirm the district court’s order. This court requires that counsel inform Lewis, in writing, of the right to petition the Supreme Court of the United States for further review. If Lewis requests that a petition be filed, but counsel believes 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 Lewis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6

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