US v. Victoria Howell, No. 12-4454 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4454 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTORIA NICOLE HOWELL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, Chief District Judge. (5:08-cr-00944-MBS-23) Submitted: October 10, 2012 Decided: December 19, 2012 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Langdon D. Long, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. John David Rowell, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Victoria Howell appeals the district court s order revoking her term of supervised release and imposing a sentence of six months imprisonment. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but questioning whether the six-month sentence was plainly unreasonable. Howell was given the opportunity file a pro se supplemental brief, but has not done so. The Government declined to file a brief. We affirm. A sentence district revoking court a has defendant s broad discretion supervised to impose a release. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will affirm a sentence imposed after revocation of supervised release if it is within unreasonable. (4th Cir. consider the statutory maximum and is not plainly United States v. Crudup, 461 F.3d 433, 439-40 2006). whether In the making this sentence substantively unreasonable. determination, imposed Id. at 438. is we first procedurally or A supervised release revocation sentence is procedurally reasonable if the district court has considered the advisory policy statement range and the 18 U.S.C. § 3553(a) factors applicable to supervised release revocation. Id. at 438-40. A court need not be as detailed or specific when imposing a revocation sentence as it must be when 2 imposing a post-conviction sentence, but it still must provide a statement of reasons for the sentence imposed. Thompson, 595 F.3d at 547 (internal quotation marks omitted). A sentence is substantively reasonable if the district court stated a proper basis for concluding the defendant should receive the sentence imposed, up to the statutory maximum. Only if a sentence unreasonable will is we plainly unreasonable. found then Crudup, 461 F.3d at 440. procedurally decide whether or substantively the sentence is Id. at 439. The district court correctly calculated the Guidelines policy statement range as three to nine months imprisonment, and the six-month sentence is within the statutory maximum of thirty-six months imprisonment. violations: failing to report Howell admitted each of the for scheduled drug testing on three separate occasions, testing positive for illegal drugs on three occasions, and refusing to enter inpatient treatment. The district court s revocation sentence did not, however, address or rely on any of the 18 U.S.C. § 3553(a) factors listed in § 3583(e). Nevertheless, a defendant must invoke those factors and argue for a sentence different than the one ultimately imposed in order to preserve[] its claim. United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). An objection to an inadequate explanation will be preserved if, during sentencing proceedings, the defendant properly raised a 3 meritorious factual or legal issue relating to one or more of the [sentencing] factors." Howell guidelines never imposed, sentence and "the Id. at 579 (quotation omitted). submitted or any a sentence rigorous request for different plain-error a than standard belowthe applies unpreserved claims of procedural sentencing error." one to Id. at 577. In order to prevail, therefore, Howell must show that an error (1) was made, (2) is plain (i.e., clear or obvious), and (3) affects substantial rights. likely satisfied, factors" since delineated in unreasonable sentence. Id. "failing § The first two conditions are to 3583(e) consider the constitutes a § 3553(a) procedurally Gall v. United States, 552 U.S. 38, 49 (2007). However, affect Howell's we are satisfied that rights. "An substantial any error error did that not affects substantial rights is an error that has a prejudicial effect on the outcome: there is a reasonable probability that, but for the error claimed, different." the result of the proceeding would have been In re Gates, 600 F.3d 333, 340 (4th Cir. 2010) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82, (2004)). Howell admitted to the allegations underlying the sentencing revocation, and the sentence was in the middle of the applicable guidelines. reasonable probability Accordingly, that the 4 we district find court there would is no have imposed a different sentence even after considering the § 3553(a) factors. We therefore affirm the district court s judgment and deny Howell s moot. writing, This of motion court her and supplemental requires right to that petition United States for further review. motion counsel the to expedite inform Supreme as Howell, in Court of the If Howell requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Howell. 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 5
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