US v. Robert Kirby, Jr., No. 14-4290 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4290 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT LESTER KIRBY, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (7:02-cr-00111-BR-1) Submitted: November 20, 2014 Decided: November 24, 2014 Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert months in release. Lester prison He Kirby following appeals, was the arguing sentenced revocation that his to of thirty-seven his sentence supervised is plainly unreasonable because it is greater than necessary to serve the purposes of supervised release. We affirm. The district court has broad discretion in selecting the sentence to impose upon revoking a defendant’s supervised release. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). This court will affirm a sentence imposed after revocation of supervised release if it is within the governing statutory range and not plainly unreasonable. Crudup, 461 F.3d 433, 437–40 (4th Cir. 2006). United States v. “When reviewing whether a revocation sentence is plainly unreasonable, we must first determine whether it is unreasonable at all.” Thompson, 595 F.3d at 546. A sentence is procedurally reasonable if the district court has considered the policy statements contained in Chapter Seven of the Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a) (2012) factors, Crudup, 461 adequately explained the sentence chosen. 547. F.3d at 440, and has Thompson, 595 F.3d at A sentence is substantively reasonable if the district court states “a proper basis” for its imposition of a sentence up to the statutory maximum. Crudup, 461 F.3d at 440. 2 If, after considering the above, we decide that the sentence is not unreasonable, we will affirm. Id. at 439. Only if this court finds the sentence unreasonable must it decide whether it is “plainly” so. Id. at 439. With these principles in mind, we have reviewed the record and the parties’ briefs and conclude that Kirby’s withinGuidelines sentence unreasonable. We dispense contentions of thirty-seven months is not plainly Accordingly, we affirm the revocation judgment. 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 3