US v. Marlin Marrs, No. 10-4017 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4017 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARLIN ANDREW MARRS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. Thomas E. Johnston, District Judge. (1:03-cr-00289-1) Submitted: October 29, 2010 Decided: January 26, 2011 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Christian M. Capece, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, John L. File, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marlin Andrew Marrs appeals the district court s judgment finding he violated a condition of supervised release, revoking supervised release and sentencing him to twenty-three months imprisonment. Marrs claims the evidence was insufficient to support a finding that he violated a condition of supervised release. unreasonable. He also claims the sentence was plainly Finding no error, we affirm. This court reviews a district court s judgment revoking supervised release and imposing a term of imprisonment for abuse of discretion. 831 (4th Cir. 1992). United States v. Copley, 978 F.2d 829, To revoke supervised release, a district court need only find a violation of a condition of supervised release by a preponderance of the evidence. § 3583(e)(3) (West 2000 & Supp. 2010); Id. 18 U.S.C.A. This burden simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence. United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation marks omitted). A defendant challenging the sufficiency of the United States v. Beidler, 110 evidence faces a heavy burden. F.3d 1064, 1067 (4th Cir. 1997). evidence in the record is In determining whether the substantial, this court views evidence in the light most favorable to the government. the United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). 2 This court will not second credibility determination. guess the district court s United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002). We conclude there is more than ample evidence to support the factual finding that Marrs violated a condition of supervised release. [W]e will not confine the [court s] discretion to the evidence the adversaries wish it to consider. See United States v. Choate, 12 F.3d 1318, 1321 (4th Cir. 1993). 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, 439-40 (4th Cir. 2006). While a district court must consider the Chapter Seven policy statements, USSG Ch. 7, Pt. B, and the statutory requirements and factors applicable to revocation sentences under 18 U.S.C.A. §§ 3553(a), 3583(e) (West 2000 & Supp. 2010), the court ultimately has broad discretion to revoke the previous sentence and impose a term of imprisonment up to the statutory maximum. Crudup, 461 F.3d at 438-39. A procedurally supervised reasonable release if the revocation district sentence considered court is the Sentencing Guidelines Chapter 7 advisory policy statements and the 18 consider U.S.C.A. in a § 3553(a) supervised factors release 3 that it revocation is permitted case. See to 18 U.S.C.A. § 3583(e); Crudup, 461 F.3d at 440. Although the court need not explain the reasons for imposing a revocation sentence in as much detail as when it imposes an original sentence, it still must imposed. provide a statement of reasons for the sentence United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal quotation marks omitted). Additionally, the court should address the defendant s nonfrivolous reasons for imposing a sentence different from the advisory sentencing range. See United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). A revocation sentence is substantively reasonable if the district court defendant stated should statutory maximum. a receive proper the basis sentence for concluding imposed, Crudup, 461 F.3d at 440. up to the the Only if a sentence is found procedurally or substantively unreasonable will this court then decide unreasonable. whether the sentence is plainly Id. at 439 (emphasis omitted). We conclude the sentence was reasonable because there were no procedural or substantive sentencing errors. Therefore, the sentence was not plainly unreasonable. Accordingly, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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