US v. Kilby Barbee, No. 10-4569 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4569 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KILBY GRAYSON BARBEE, a/k/a Grayson Barbee, a/k/a Graton Barbee, a/k/a Kilby C. Barbee, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:06-cr-00017-F-1) Submitted: March 10, 2011 Decided: March 21, 2011 Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Jennifer P. MayParker, Felice McConnell Corpening, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kilby Grayson twenty-four-month Barbee sentence supervised release. appeals imposed upon revocation release sentence should statutory be maximum his of imposed affirmed and is after if revocation it not We affirm. is plainly supervised the within of applicable unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). making this his On appeal, he asserts that his sentence is procedurally and substantively unreasonable. A from determination, sentence is unreasonable. we first consider Id. at 438. 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 guidelines sentences. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). In making this review, we follow generally the procedural and substantive considerations that [are] employ[ed] in [the] review of original sentences, . . . with some unique necessary nature of modifications supervised to release take into account revocation the sentences. Crudup, 461 F.3d at 438-39. A procedurally Chapter sentence imposed reasonable Seven policy if upon the statements revocation district and the of court 18 considered U.S.C. (2006) factors that it is permitted to consider. 2 release is the § 3553(a) See 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at 438-40. A sentence imposed upon revocation of release is substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory maximum. Crudup, 461 F.3d at 440. sentence is not unreasonable. is found decide [T]he procedurally whether court the or substantively sentence ultimately Id. at 439. has is plainly broad We affirm if the Only if a sentence unreasonable will unreasonable. discretion to we Id. revoke its previous sentence and impose a term of imprisonment up to the statutory maximum. When Id. imposing sentence, the district court must provide individualized reasoning: The sentencing judge should 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. . . . Where the defendant . . . presents nonfrivolous reasons for imposing a different sentence than that set forth in the advisory Guidelines, a district judge should address the party s arguments and explain why he has rejected those arguments. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The Carter rationale applies to revocation hearings; however, [a] court need revocation not be sentence as detailed as post-conviction sentence. it or must specific be when when imposing imposing a a United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). 3 Here, the district court considered Barbee s arguments for a sentence combining incarceration, home confinement, and drug treatment, and rejected them. The court explicitly considered the Guidelines range as well as many of the statutory factors that it was permitted to consider when arriving at a sentence. continued In drug this use regard, even the after court drug mentioned treatment, the Barbee s need to protect society from the consequences of Barbee s drug use, and the need for Barbee to receive further treatment. As such, the district court adequately discussed the reasons for the chosen sentence, and thus, Barbee s sentence was procedurally reasonable. Turning to the substantive reasonableness of Barbee s sentence, the district court s decision that another period of non-incarcerated (or minimally incarcerated) drug treatment was not a sufficient sanction for Barbee s multiple violations of supervised release was not an abuse of discretion. the length of the sentence and the court s In addition, recommendation increased the likelihood that Barbee would receive the requested and recommended intensive drug treatment while in prison. Crudup, 461 F.3d at 440 (upholding imposition of See maximum sentence for revocation of supervised release based, in part, on need Crudup for substance receive abuse treatment intensive substance 4 and recommendation abuse treatment that while incarcerated). Finally, Barbee failed to show in district court or on appeal that there was a permissible way of structuring his sentence that would ensure both a substantial sentence and continued intensive drug treatment. Moreover, challenging his Barbee faces sentence. Even a if very he heavy could show burden in that his sentence was unreasonable, he would still need to show that it was plainly unreasonable. A sentence is plainly unreasonable Thompson, 595 F.3d if it run[s] afoul of clearly settled law. at 548. Barbee has not cited clearly settled law that was violated by the district court s sentence, and the record does not reveal any such obvious errors. Accordingly, we affirm Barbee s sentence. We deny Barbee s motion to file a pro se reply brief. 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 5
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