US v. Fred Gerth, III, No. 12-4715 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4715 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRED LOUIS GERTH, III, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:06-cr-00040-FL-1) Submitted: March 8, 2013 Decided: March 14, 2013 Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fred Louis Gerth, III, appeals the district court s judgment revoking his supervised twenty-four-month prison term. release district court imposing a Gerth challenges this sentence, arguing that it is plainly unreasonable. A and has broad We affirm. 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 plainly unreasonable. 437, 439-40 (4th statutory maximum and not United States v. Crudup, 461 F.3d 433, Cir. 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. A procedurally supervised reasonable Id. at 438. release if the revocation district sentence court is considered the Sentencing Guidelines Chapter 7 advisory policy statements and the 18 U.S.C. § 3553(a) (2006) factors it is consider in a supervised release revocation case. permitted to 18 U.S.C.A. § 3583(e) (West 2006 & Supp. 2012); Crudup, 461 F.3d at 439. Such a sentence is substantively reasonable if the district court stated a proper basis for concluding the defendant should 2 receive the sentence Crudup, 461 F.3d imposed, at up 440. to Only if the a statutory sentence maximum. is found procedurally or substantively unreasonable will we then decide whether the sentence is plainly unreasonable. Id. at 439. A sentence is plainly unreasonable if it is clearly or obviously unreasonable. Id. In this case, there is no dispute that Gerth s twenty-four-month prison sentence does not exceed the applicable statutory maximum sentence of two years imprisonment, 18 U.S.C. § 3559(a) (2006); 18 U.S.C.A. § 3583(e)(3), and Gerth does not assert that the district court committed any procedural errors. Rather, he contends that his sentence is substantively unreasonable in light of his need for mental health treatment. After review of the parties briefs and the record, we conclude that the twenty-four-month prison sentence, although above the advisory policy statement range of four to ten months imprisonment, is not unreasonable. The district court considered the advisory policy statement range and the arguments of Gerth s counsel for a sentence below that range. apparent that the court also considered relevant It is § 3553(a) factors, addressing on the record the nature and circumstances of Gerth s violative behavior and the need for the sentence to protect the public and to deter Gerth. (2)(B)-(C). 18 U.S.C. § 3553(a)(1), The court s comments also indicate that it imposed 3 a sentence Gerth s above breach the of policy trust, statement despite range prior as a lenient result of treatment. See U.S. Sentencing Guidelines Manual Ch. 7, Pt. A, introductory cmt. 3(b) ( [A]t revocation the [district] court should sanction primarily the defendant s breach of trust. ). the district imposing proper court the adequately twenty-four-month considerations discretion that a in explained prison doing district its sentence so. court We conclude that Based has to rationale for and relied on the revoke a on broad term of supervised release and impose a prison term up to and including the statutory unreasonable. maximum, Gerth s revocation sentence is not Therefore, we conclude that Gerth s sentence is not plainly unreasonable. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4