US v. Grady Rushing, No. 16-4007 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4007 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GRADY LEE RUSHING, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:08-cr-00192-MOC-1) Submitted: October 19, 2016 Before MOTZ and Circuit Judge. SHEDD, Circuit Decided: Judges, and November 14, 2016 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, Anthony J. Enright, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Grady Lee Rushing appeals the district court’s judgment revoking his supervised release and imposing a sentence of time served, plus an additional four-year term of supervised release. On appeal, Rushing assigns error to the district court’s refusal to eliminate the portion mandating reimbursement appointed attorney. reasonableness of of for the Rushing the his original costs also revocation of criminal Rushing’s challenges sentence judgment in the court- procedural terms of the adequacy of the district court’s explanation for the selected term of supervised release. For the reasons that follow, we affirm. Rushing first asserts that, pursuant to this court’s decision in United States v. Moore, 666 F.3d 313, 320-24 (4th Cir. 2012) (holding that a fee-reimbursement order must be based on the district court’s “finding that there are specific funds, assets, or asset streams (or the fixed right to those funds, assets or asset streams) that are (1) identified by the court and (2) available to the defendant for the repayment of the court-appointed attorneys’ fees”), the reimbursement provision in the original criminal judgment is invalid, and that the district court erred in declining to excise this portion of that judgment. that the Assuming without deciding that this is correct and reimbursement order would 2 not stand after Moore, Rushing fails proposition to identify that the any legal district authority court the alter could for the reimbursement order — which was part of the original criminal judgment — in the context of adjudicating a supervised release revocation petition. 170 (5th Cir. Cf. United States v. Willis, 563 F.3d 168, 2009) (“It is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence.”); United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006) correct a (explaining final that judgment in “[a] a district criminal may to reflect case judge still the sentence he actually imposed but he cannot change the sentence he did impose even if the sentence was erroneous”). We thus reject Rushing’s first assignment of error. Next, Rushing challenges the adequacy of the district court’s explanation for imposing an additional four-year term of supervised release. imposing a “A district court has broad discretion when sentence upon revocation of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). This court “will affirm a revocation sentence if it is within the statutory maximum and is not plainly (internal quotation marks omitted). revocation sentence is plainly unreasonable.” “When reviewing whether a unreasonable, determine whether it is unreasonable at all.” 3 Id. we must first United States v. Thompson, sentence 595 is F.3d 544, 546 procedurally (4th Cir. reasonable 2010). if the A revocation district court adequately explains the sentence after considering the policy statements in Chapter Seven of the Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a) (2012) factors. See 18 U.S.C. § 3583(e) (2012); Thompson, 595 F.3d at 546-47. The transcript of the revocation hearing reveals that the district release court on imposed Rushing a for new, two four-year main term reasons: of (1) supervised Rushing’s demonstrable need for supervision and guidance as he adapted to living a law-abiding life; and (2) to protect the public from further criminal adjustment. This activity by Rushing while explanation reflects the he made district this court’s consideration of permissible factors, see 18 U.S.C. §§ 3583(e), 3553(a)(1), (a)(2)(C), and more than satisfies the above standard. We therefore judgment. legal before affirm the district court’s revocation We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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