US v. Dominique Weldon, No. 13-4026 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4026 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DOMINIQUE RASHEED WELDON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:09-cr-00287-H-1) Submitted: August 6, 2013 Decided: August 23, 2013 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion.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, Yvonne Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dominique Rasheed Weldon appeals the twenty-four-month sentence imposed upon revocation of supervised release. Finding no error, we affirm. We will affirm a sentence imposed following revocation of supervised release if the sentence is within the applicable statutory range . . . and is not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir 2006). When reviewing whether a revocation sentence is plainly unreasonable, we must first determine whether it is unreasonable at all. United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). Such a sentence is procedurally reasonable if the district court considered both the policy statements in Chapter Seven of the Sentencing (2006) Guidelines factors. and any pertinent Crudup, 461 F.3d at 18 U.S.C. 440. A § 3553(a) sentence is substantively reasonable if the district court states a proper basis for the sentence. Id. Where, as here, the sentence departs from the Chapter 7 policy statement range, the court must make explicit the reasons for its departure. See United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007). If the sentence is not unreasonable, we will affirm because a sentence that is not unreasonable also is Crudup, 461 F.3d at 439. 2 not plainly unreasonable. None of Weldon s challenges to reasonableness of his sentence has merit. the procedural First, he complains that the district court identified the need to promote respect for the law as one of several reasons for imposing the selected sentence. Weldon factor not is § 3583(e) revocation that correctly among a the court sentence. states factors may that identified consider However, this § 3553(a)(2)(A) in 18 U.S.C. prior to imposing consideration of an a omitted § 3553(a) factor does not render a revocation sentence plainly unreasonable, especially where, as here, the district court primarily relied on permitted factors in selecting the sentence. See United States v. Black, 289 F. App x 613, 614-15 (4th Cir. 2008); United States v. Lewis, 498 F.3d 393, 399-400 (6th Cir. 2007). Weldon also argues that the court gave an insufficient explanation for the twenty-four-month sentence, which is well above the recommended Chapter 7 policy statement range of sixtwelve months. The record reflects that the court cited as reasons for the selected sentence Weldon s extensive criminal history beginning at age sixteen, his gang affiliation, his poor work record, and his having failed administered over a short period of time. explanation was sufficient. 3 multiple drug tests We conclude that this Finally, Weldon contends that the district court did not consider placing him in a substance abuse treatment program in lieu of incarceration. See 18 U.S.C. § 3583(d) (2006). While the record is silent as to whether the court considered this alternative to incarceration, we note that, in the absence of evidence to the contrary, the district court is presumed to have properly § 3583(d). recognized and exercised its discretion under United States v. Hammonds, 370 F.3d 1032, 1038-39 (10th Cir. 2004). We find nothing in the record that would rebut this presumption. Because Weldon s sentence is not plainly unreasonable, we affirm. legal We dispense with oral argument because the facts and contentions are adequately presented in the materials before us and argument would not aid the decisional process. AFFIRMED 4
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