US v. Charles Simmons, No. 13-4882 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4882 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CHARLES ORLANDO SIMMONS, a/k/a Darryl McMillan, a/k/a Big Flip, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-01037-RBH-1) Submitted: April 10, 2014 Before KEENAN Circuit Judge. and WYNN, Decided: Circuit Judges, and May 1, 2014 DAVIS, Senior Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Arthur Bradley Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles Orlando Simmons appeals from the revocation of his supervised release and his resulting eighteen-month prison term. On appeal, Simmons attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious issues for appeal but questions whether Simmons sentence is plainly unreasonable. Although advised of his right to file a supplemental pro se brief, Simmons has not done so. After our review of the record, we affirm. We review a district court s judgment revoking supervised release and imposing a term of imprisonment for abuse of discretion. Cir. 1999). release United States v. Pregent, 190 F.3d 279, 282 (4th A sentence imposed after revocation of supervised should statutory be maximum affirmed and is if not it is plainly within the applicable unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). making this determination, we first consider whether In the sentence imposed is procedurally or substantively unreasonable. Id. at 438. This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks omitted). 2 A sentence procedurally imposed reasonable if upon the revocation district of court release is considered the Chapter Seven Policy Statements and the applicable 18 U.S.C. § 3553 (2012) factors, see 18 U.S.C. § 3583(e) (2012); Crudup, 461 F.3d at 438-40, and adequately explained the sentence imposed, United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). sentence imposed reasonable if concluding that upon the revocation district the of court defendant release stated should imposed, within the statutory maximum. a is substantively proper receive if a sentence is found basis the for sentence Crudup, 461 F.3d at 440. We affirm if the sentence is not unreasonable. Only A procedurally or Id. at 439. substantively unreasonable will we decide whether the sentence is plainly unreasonable. Id. [T]he court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum. Id. (internal quotation marks omitted). We conclude that Simmons procedurally and substantively reasonable. considered the Chapter 7 Policy sentence is both The district court Statements and relevant statutory factors (including the nature and circumstances of the offense and Simmons failure to comply with the terms of supervised release), and properly imposed a sentence within the policy statement range and below the statutory maximum. 3 In accordance with Anders, we have reviewed the entire record and Accordingly, have we found affirm no the meritorious district issues court s for appeal. judgment. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If counsel the client believes requests that such that a a petition petition would be be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. 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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