US v. William Canterbury, No. 08-4078 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4078 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM LEE CANTERBURY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. David A. Faber, District Judge. (5:03-cr-00056-1) Submitted: July 18, 2008 Decided: September 4, 2008 Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, David R. Bungard, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Miller A. Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Lee Canterbury appeals the district court s judgment revoking his supervised release and sentencing him to eleven months applicable imprisonment, range based on a the guidelines policy statement. sentence at non-binding the top federal of the sentencing Canterbury contends that there was insufficient evidence to find that he had violated the terms of his supervised release by committing assault and battery in violation of W. Va. Code Ann. § 61-2-9 (Michie 2005) and that the sentence imposed was unreasonable. A decision to revoke a defendant s supervised release is reviewed for abuse of discretion. F.3d 279, 282 (4th Cir. 1999). United States v. Pregent, 190 The district court need only find a violation of a condition of supervised release by a preponderance of the evidence. 18 U.S.C.A. § 3583(e)(3) (West 2000 & Supp. 2008). We review for clear error factual determinations underlying the conclusion that a violation occurred. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). Canterbury argues that the evidence was insufficient to find by a preponderance of the evidence that he committed assault and battery because the witnesses whose testimony supported such a finding were not credible. However, this court gives due regard to the district court s opportunity to judge the credibility of witnesses and does not review credibility determinations. States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995). - 2 - United Accordingly, we find no abuse of discretion in the revocation of Canterbury s supervised release. Next, Canterbury argues that the sentence imposed is unreasonable. We will affirm a sentence imposed following revocation of supervised release if it is within the applicable statutory limits and is not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006), cert. denied, 127 S. Ct. 1813 (2007). reasonableness, The sentence first must be assessed for follow[ing] generally the procedural and substantive considerations that we employ in our review of original sentences, . . . with some necessary modifications to take into account the unique nature of supervised release revocation Id. at 438-39; see United States v. Finley, ___ F.3d sentences. ___, ___, 2008 WL 2574457, at *5 (4th Cir. June 30, 2008) (No. 074690) ( In applying the plainly unreasonable standard, we first determine, using the instructions given in Gall[v. United States, 128 S. Ct. 586, unreasonable. ). affirm. 597 (2007)], whether a sentence is If we find the sentence to be reasonable, we Crudup, 461 F.3d at 439. Only if a sentence is found procedurally or substantively unreasonable will this court decide whether the sentence is plainly unreasonable. ___ F.3d at ___, 2008 WL 2574457, at *5. court must consider the Chapter 7 Id.; see Finley, Although the district policy statements and the requirements of 18 U.S.C.A. §§ 3553(a), 3583 (West 2000 & Supp. 2008), the [district] court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up - 3 - to the statutory maximum. Crudup, 461 F.3d at 439 (internal quotation marks and citations omitted). We have thoroughly reviewed Canterbury s sentence and find it to be procedurally and substantively reasonable. this conclusion, it necessarily follows sentence is not plainly unreasonable. that Based on [Canterbury s] Gall, 128 S. Ct at 597; see Finley, ___ F.3d at ___, 2008 WL 2574457, at *9. Accordingly, we affirm the district court s judgment revoking Canterbury s supervised release and imposing an elevenmonth prison term. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED - 4 -
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