US v. Kelvin Walker, No. 09-5095 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5095 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KELVIN DEMETRIUS WALKER, a/k/a Tweet, a/k/a Tweety, a/k/a Derek Fenty, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:92-cr-00053-F-9) Submitted: September 30, 2010 Decided: November 2, 2010 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, 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 Unpublished opinions are not binding precedent in this circuit.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: Kelvin Demetrius Walker appeals the twenty-four-month sentence imposed release. upon Walker revocation argues on of his appeal term that of his supervised sentence is procedurally unreasonable because the district court improperly considered factors not permitted by 18 U.S.C. § 3583(e) (2006). We affirm. We will not disturb a sentence imposed after revocation of supervised release that is within the prescribed statutory range and is not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). In making this determination, unreasonable. we first consider Id. at 438. whether the sentence is This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks and citation omitted). The however. 2010). district court s discretion is not unlimited, United States v. Thompson, 595 F.3d 544, 547 (4th Cir. For instance, the district court commits procedural error by failing to adequately explain the chosen sentence or by not providing an individualized assessment based on the facts. Gall v. United States, 552 U.S. 38, 51 (2007). court need not be as detailed 2 or specific Although [a] when imposing a revocation sentence as it must be when imposing a post- conviction sentence, . . . it still must provide a statement of reasons for the sentence imposed. Thompson, 595 F.3d at 547 (internal quotation marks and citation omitted). The judge also must set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis for exercising his own legal decisionmaking authority. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Although a district court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum, Crudup, 461 F.3d at 439 (internal quotation marks omitted), the court must consider the Chapter Seven policy statements in the federal sentencing guidelines manual, as well as the statutory requirements and factors applicable §§ 3553(a), 3583(e) to revocation (2006). sentences Chapter under Seven 18 U.S.C. provides, at revocation, the court should sanction primarily the defendant s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator. USSG ch. 7, pt. A(3)(b). Section 3583 approves consideration of a majority of the factors listed in § 3553(a), omitting only two. 18 U.S.C. § 3583(e). Among the omitted factors is the need to reflect the seriousness of 3 the offense, to promote respect for the law, and to provide just punishment for the offense. In reasons for this case, imposing a 18 U.S.C. § 3553(a)(2)(A). the district court twenty-four-month offered sentence, several an upward departure from the policy statement range of six to ten months. It considered Walker s two sentence reductions from his original sentence, Walker s criminal history, and the circumstances under which Walker violated the terms of his supervised release, which included committing property and drug-related from justice, and resisting arrest. the upward departure reflected crimes, fleeing While the court said that the seriousness of Walker s revocation conduct, the grounds cited by the district court were relevant to other required considerations, including the nature and circumstances characteristics of the defendant. of the (a)(2)(B), (a)(2)(C). entirety, we did factors find not offense and 18 the history U.S.C. and § 3553(a)(1), Reviewing the court s explanation in its the court s render consideration Walker s of sentence the stated procedurally unreasonable. Accordingly we conclude that Walker s sentence is not plainly unreasonable. district facts court. and legal We We therefore affirm the judgment of the dispense contentions with are 4 oral argument adequately because presented in the the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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