US v. Randy Boso, No. 10-4088 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4088 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RANDY LEE BOSO, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:06-cr-00002-FPS-2) Submitted: November 18, 2010 Before SHEDD and Circuit Judge. AGEE, Circuit Decided: Judges, and November 29, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Brendan S. Leary, Assistant Federal Public Defender, Wheeling, West Virginia, for Appellant. Betsy C. Jividen, United States Attorney, Randolph J. Bernard, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Randy Lee Boso appeals from the twelve-month sentence imposed pursuant to the revocation of his supervised release. Counsel has California, filed 386 a U.S. brief 738 in accordance (1967), stating with that Anders there v. are no meritorious issues for appeal, but raising the issue of whether the district court erred in imposing the sentence. Boso has filed a pro se supplemental brief and the United States filed a reply brief affirming that there were no meritorious issues for appeal. We affirm. A release sentence should statutory be maximum imposed after affirmed and is if not it revocation is plainly within of supervised the applicable unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). making this determination, sentence is unreasonable. we first Id. at 438. consider whether In the This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guideline sentences. 652, 656 (4th Cir. 2007). generally the procedural United States v. Moulden, 478 F.3d In making our review, we follow and substantive considerations that [are] employ[ed] in [the] review of original sentences, . . . with some necessary modifications 2 to take into account the unique nature of supervised release revocation sentences. Crudup, 461 F.3d at 438-39. A sentence procedurally Chapter imposed reasonable Seven policy if upon the statements revocation district and the court 18 of considered U.S.C. revocation of release is § is the 3553(a) See 18 U.S.C. (2006) factors that it is permitted to consider. § 3583(e); Crudup, 461 F.3d at 438-40. release A sentence imposed upon substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive statutory maximum. the sentence sentence is is the sentence imposed, Crudup, 461 F.3d at 440. not found unreasonable. procedurally or Id. at up to the We will affirm if 439. substantively Only if a unreasonable will we decide whether the sentence is plainly unreasonable. Id. Because Boso did not request a sentence different from the one imposed, review is for plain error. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). We conclude that Boso failed to make the requisite showings. The court explicitly considered the Sentencing Guidelines range (eight to fourteen months) as well as many of the statutory factors that it was permitted to consider when arriving at a sentence. In this regard, the court mentioned the need to promote respect for the law, Boso s continuing criminal 3 conduct, the need to deter future violations, and Boso s unsatisfactory conduct while on supervised release. Boso filed a pro se supplemental brief raising the following issues: that counsel should have filed a brief on the merits instead of an Anders brief, ineffective assistance of counsel for failing to object to the alleged double jeopardy for supervised release screenings, and violations the district Sentencing Guidelines range. based court on erred in multiple urine calculating the We have reviewed these claims, and the entire record, in accordance with Anders, and have found no meritorious issues. sentence. writing, United We therefore affirm Boso s conviction and This of court requires the right to States for further that counsel petition the review. If inform Supreme Boso Boso, Court requests of in the 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 Boso. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. AFFIRMED 4
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