US v. Sherri Smith, No. 10-5059 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5059 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SHERRI LYNN SMITH, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:04-cr-00219-HEH-1) Submitted: March 28, 2011 Decided: April 14, 2011 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Robert J. Wagner, Assistant Federal Public Defender, Caroline S. Platt, Appellate Attorney, Richmond, Virginia, for Appellant. Laura Colombell Marshall, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sherri Lynn Smith pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (2006), and was sentenced in November 2004 to thirty-six months imprisonment, followed by a five-year term of supervised release. Smith s prison term was subsequently reduced to twenty-seven months as a result of her substantial assistance to the Government, see Fed. R. Crim. P. 35(b). 2006. Smith was released from imprisonment in June After Smith failed to comply with the condition of her supervised within release that seventy-two release was she report to her hours of her release, and she was sentenced revoked probation Smith s in officer supervised March 2007 to eighteen months imprisonment, followed by forty-two months of supervised release. July 2008 and again Smith was released from imprisonment in began serving her term of supervised release. In February 2010, Smith s probation officer petitioned the district court to revoke Smith s supervised release, alleging in the petition that Smith had violated her supervised release by testing positive for cocaine and being arrested and charged damage, in state grand court with larceny, credit and credit card card fraud, intentional larceny. Smith ultimately pled guilty in Virginia state court to two counts of petit larceny. At the revocation hearing in the district court, 2 Smith admitted these convictions and to testing positive for cocaine. and The district court revoked Smith s supervised release ultimately sentenced her to twenty-four months imprisonment, followed by an eighteen-month term of supervised release. On appeal, Smith s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether Smith s revocation sentence is plainly unreasonable. Smith has filed a letter concerning her sentence that we construe as a pro se supplemental brief. A district We affirm. court has broad discretion to impose sentence upon revoking a defendant s supervised release. States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). a United We will affirm a sentence imposed after revocation of supervised release if it is within the applicable statutory maximum and is not plainly unreasonable. 437, 439-40 (4th Cir. United States v. Crudup, 461 F.3d 433, 2006). In determining whether a revocation sentence is plainly unreasonable, we first assess the sentence for unreasonableness, follow[ing] generally the procedural and substantive considerations that we employ in our review of original sentences. Id. at 438. A supervised release revocation sentence is procedurally reasonable if the district court considered the Sentencing Guidelines Chapter 7 advisory policy statements and the 18 U.S.C. § 3553(a) (2006) 3 factors that it is permitted to consider in a supervised release revocation case. See 18 U.S.C.A. § 3583(e) (West 2006 & Supp. 2010); Crudup, 461 F.3d at 439. 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 provide a statement of reasons for the sentence imposed. Thompson, 595 F.3d at 547 (internal quotation marks omitted). A revocation sentence is substantively reasonable if the district court stated a proper basis for concluding the defendant should receive the sentence Crudup, 461 F.3d at imposed, 440. up to Only the if a statutory sentence maximum. is found procedurally or substantively unreasonable will we then decide whether the sentence (emphasis omitted). is plainly unreasonable. revocation at 439 A sentence is plainly unreasonable if it is clearly or obviously unreasonable. After Id. review sentence of is the Id. record, not we plainly conclude that unreasonable. the The twenty-four month prison term and the eighteen-month term of supervised release do not exceed the applicable maximums allowed by statute, see § 3583(e)(3), (h). 18 U.S.C. § 3559(a)(2) (2006); 18 U.S.C.A. The district court considered the argument of Smith s counsel and relevant § 3553(a) factors, addressing on the record Smith s history and characteristics, the nature and circumstances of her violative 4 behavior, the need for the sentence to deter Smith, and Smith s breach of trust following prior lenient treatment. See 18 U.S.C. § 3553(a)(1), (a)(2)(B)- (C); USSG Ch. 7, Pt. A, introductory cmt. 3(b). The district court adequately explained its rationale for imposing sentence, and the reasons relied upon are proper bases for the sentence imposed. Unfortunately, the district court considered an statement range; * accordingly, the revocation sentence is unreasonable. However, we plainly erroneously-calculated easily conclude unreasonable advisory that because the policy Smith s sentence sentence does is not not exceed the applicable statutory maximums, and the record does not contain any basis upon which to conclude that the imposed sentence is clearly or obviously unreasonable. See Crudup, 461 F.3d at 439. In accordance with Anders, we have reviewed Smith s pro se supplemental brief and the remainder of the record and have found therefore meritorious affirm supervised sentence no the release and the issues district and remaining court s imposing eighteen-month * the term order for revoking twenty-four of appeal. Smith s month supervised We prison release. The probation officer calculated an advisory policy statement range of eighteen to twenty-four months imprisonment, see U.S. Sentencing Guidelines Manual ( USSG ) (2009). Properly calculated, the advisory policy statement range applicable to Smith was seven to thirteen months imprisonment, see USSG §§ 7B1.1(a)(3), p.s., 7B1.4(a), p.s.; Va. Code Ann. §§ 18.2-11(a), 18.2-96(2) (2009). 5 This court requires that counsel inform Smith, in writing, of the right to petition the Supreme Court of the United States for further review. If Smith requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Smith. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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