US v. Calvin Audu, No. 09-5217 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5217 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CALVIN JERMANE AUDU, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:99-cr-00106-1) Submitted: April 28, 2010 Decided: May 20, 2010 Before MOTZ, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, R. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Calvin Jermane Audu appeals the district court s judgment revoking his supervised release and sentencing him to six months sentence failed imprisonment. is to plainly On appeal, Audu because the calculate unreasonable policy advisory alleges the that district statement his court range and failed to solicit argument from the parties about the sentence. For the following reasons, we affirm. This court will affirm a sentence imposed after revocation of supervised release if it is within the prescribed statutory range and not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). determination, unreasonable. we first Id. at 438. consider whether In making this the sentence is This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion [G]uidelines sentences. than reasonableness review for United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 439). To determine whether the sentence is unreasonable, we generally follow the procedural and substantive considerations employed in reviewing original sentences. Crudup, 461 F.3d at 438-39; see United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) ( In applying the plainly unreasonable standard, we first determine, using the instructions given in Gall [v. United 2 States, 552 U.S. 38, unreasonable. ). 51 (2007)], Here, the whether district a sentence court is committed procedural error when, at least on the face of the record before us, it does not appear that either the court or the probation officer range. calculated the advisory policy statement sentencing See Gall, 552 U.S. at 51. Upon finding this procedural error, our next step under Crudup is to determine whether the sentence is plainly unreasonable, under plain-error analysis. the definition of plain Crudup, 461 F.3d at 439. used in For a sentence to be plainly unreasonable . . . it must run afoul of clearly United States v. Thompson, 595 F.3d 544, 548 (4th settled law. Cir. 2010). calculate Because the advisory the district policy court s statement obligation sentencing range to has been settled since 2007, see Moulden, 478 F.3d at 656-57, we conclude that its failure to do so is plainly unreasonable. However, because Audu has not preserved this issue, it is subject to plain error review. Under the plain error standard, the defendant must show that an error was made, is plain, and affects the defendant s substantial rights. United States 2009). Because v. Massenburg, the sentence 564 F.3d imposed 337, by 342-43 the (4th district Cir. court was ultimately within the advisory policy statement range and was 3 within the statutory maximum, we find that the error does not affect Audu s substantial rights. Finally, assertion, he we was conclude given ample that, opportunity specific sentence, but did not do so. district court s revocation six-month sentence. facts and materials legal before of contrary to to Audu s argue for a Therefore, we affirm the supervised release and the 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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