US v. Ernest Walker, No. 13-4209 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4209 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERNEST WALKER, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:01-cr-00140-1) Submitted: January 28, 2014 Decided: February 11, 2014 Before DUNCAN, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellant Counsel, Rhett H. Johnson, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, William B. King, II, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ernest Walker appeals from the thirty-six-month sentence imposed upon revocation of his supervised release. He contends We that this sentence was plainly unreasonable. affirm. We will affirm a sentence imposed after revocation of supervised release if it is within the prescribed statutory range and not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). * First we consider whether the sentence unreasonable. more imposed is Id. at 438. deferential posture procedurally or substantively In this initial inquiry, we take a concerning issues of fact and the exercise of discretion than undertaken for the reasonableness review for Guidelines sentences. F.3d 652, 656 (4th Cir. United States v. Moulden, 478 2007). If we find the sentence procedurally or substantively unreasonable, we must then decide whether it is plainly so. Here, the Id. at 657. district court correctly calculated and considered the advisory policy statement range, considered the * Although Walker requests that we reexamine the plainly unreasonable standard in light of decisions from other circuit courts applying a reasonableness standard of review, we decline to do so. United States v. Bullard, 645 F.3d 237, 246 (4th Cir. 2011) (one panel of this court cannot overrule the decision of another panel). 2 relevant factors, and gave the parties an opportunity to present argument. The sentence was procedurally reasonable. See United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). The court also sufficiently explained its reasons for imposing a sentence within the policy statement range. See Crudup, 461 F.3d at 440. Walker contends that, in determining the sentence, the district court improperly relied on the need for the sentence imposed to provide just punishment for the offense. Because Walker did not object in the district court to the explanation of his sentence, we review for plain error. Hargrove, 625 F.3d 170, 183-84 (4th Cir. United States v. 2010); see United States v. Olano, 507 U.S. 725, 732-34 (1993). The district court s consideration of the need to impose just punishment was in conjunction with its consideration of the factors § 3583(e) in 18 enumerates U.S.C. the § factors 3583(e) a (2012). district Although court should consider when formulating a revocation sentence, it does not expressly prohibit a court from factors omitted from the statute. F.3d 638, 641 (4th Cir. 2013). referencing other relevant United States v. Webb, 738 Because the district court properly considered the need for punishment in conjunction with the enumerated factors, we find no plain error by the district court. See id. at 642 (concluding 3 that reference to non- enumerated factor procedurally does unreasonable not when render considered revocation in sentence conjunction with enumerated 18 U.S.C. § 3553(a) (2012) factors). Accordingly, revocation we sentence which conclude is not that greater the thirty-six-month than the statutory maximum and is within the policy statement range of Chapter 7 of the Guidelines is not plainly unreasonable. the revocation judgment. We therefore affirm We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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