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United States v. Conklin, 05-4863 (2007)

Court: Court of Appeals for the Fourth Circuit Number: 05-4863 Visitors: 31
Filed: Apr. 19, 2007
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4863 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LORINDA LEIGH CONKLIN, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (CR-99-83) Submitted: March 21, 2007 Decided: April 19, 2007 Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Daniel K. Read, Abingdon, Vi
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                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4863



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LORINDA LEIGH CONKLIN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-99-83)


Submitted:   March 21, 2007                 Decided:   April 19, 2007


Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Daniel K. Read, Abingdon, Virginia, for Appellant. Randy Ramseyer,
United States Attorney, Zachary T. Lee, OFFICE OF THE UNITED STATES
ATTORNEY, Abingdon, Virginia; John L. Brownlee, United States
Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Lorinda   Conklin1   appeals   the   district    court’s   order

revoking her supervised release and sentencing her to thirty-six

months’ imprisonment.        Counsel has filed a brief pursuant to

Anders v. California, 
386 U.S. 738
 (1967), contending there are no

meritorious issues for appeal but requesting this court review the

reasonableness of Conklin’s revocation sentence.             Conklin did not

file a pro se supplemental brief, despite being notified of her

right to do so.        The Government declined to file a responding

brief.     Finding no reversible error, we 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
, 437 (4th Cir.), cert. denied, 
2007 WL 789123
 (U.S. Mar. 19,

2007) (No. 06-7631).      While the district court must consider the

policy statements contained in U.S. Sentencing Guidelines Manual

(“USSG”) Ch. 7 (2004) and the statutory requirements and factors

applicable to revocation sentences under 18 U.S.C.A. §§ 3553(a),

3583 (West 2000 & Supp. 2006), the district court ultimately has

broad discretion to revoke the previous sentence and impose a term

of imprisonment up to the statutory maximum.          Crudup, 461 F.3d at

439.



       1
      Counsel’s brief reflects the Appellant’s current last name of
Williams.

                                   - 2 -
            Under Crudup, we must first consider whether the sentence

imposed upon the revocation of supervised release falls within the

applicable statutory maximum.         Crudup, 461 F.3d at 440.          Although

Conklin’s sentence was substantially above the advisory guideline

range of six to twelve months, see USSG § 7B1.4(a) (2004), it was

within   the   applicable       statutory     maximum     of    three    years’

imprisonment. See 18 U.S.C. § 3583(e)(3) (West 2000 & Supp. 2006).

            Next,   we   must    determine     whether    the    sentence    is

procedurally or substantively unreasonable.             Only if the sentence

is found unreasonable will we decide whether the sentence is

plainly unreasonable.       Crudup, 461 F.3d at 437.            A sentence is

procedurally   reasonable       if   the   district   court    considered   the

advisory sentencing guidelines range and the § 3553(a) factors that

it is permitted to consider in a supervised release revocation

case. Id. at 440. Further, a sentence is substantively reasonable

if the district court stated a proper basis for concluding that the

defendant should receive the sentence imposed (up to the statutory

maximum).    Id.

            A thorough review of the sentencing transcript indicates

the district court sufficiently considered the advisory sentencing

guidelines range and several of the § 3553(a) factors.                    These

factors included providing Conklin with appropriate medical care2


     2
      Conklin suffers from bipolar disorder, anxiety, and panic
attacks. An examiner concluded Conklin’s mental illness did not
interfere with her ability to appreciate the nature and quality or

                                     - 3 -
and other correctional treatment in the most effective manner as

well as the need for the sentence to reflect the seriousness of the

offense, to promote respect for the law, and to provide just

punishment.3         See 18 U.S.C.A. § 3553(a)(2) (West 2000 & Supp.

2006).     Although the district court did not explicitly refer to

these    or    any    other    factors,     a    sentencing    court    need   not

“robotically     tick     through    §    3553(a)’s    every    subsection”     or

“explicitly discuss every § 3553(a) factor on the record.”                 United

States v. Johnson, 
445 F.3d 339
, 345 (4th Cir. 2006).                  In light of

this record, and the “substantial latitude” and “broad discretion”

accorded      district    courts    in    devising    appropriate      revocation

sentences, Crudup, 461 F.3d at 439, we are confident the court

properly took all relevant factors into account in devising its

revocation sentence.4         See United States v. Davis, 
53 F.3d 638
, 642

(4th Cir. 1995) (consideration of issues fully presented for

determination is implicit in court’s ruling). Furthermore, we find




wrongfulness of her actions, as well as the consequences of her
wrongful acts.
     3
      The probation officer’s violation report alleged Conklin
committed welfare fraud, submitted untruthful and incomplete
financial reports, provided false responses to the probation
officer’s inquiries, failed to report her shoplifting arrest, and
failed to satisfy her monthly restitution payments.       Conklin
admitted to this conduct at the revocation hearing.
     4
      Additionally, we conclude the district court did not abuse
its discretion in denying motions for a downward departure and for
a rehearing.

                                         - 4 -
the district court stated a proper basis for concluding Conklin

should receive the sentence imposed.

          In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm Conklin’s conviction and sentence.        We deny

counsel’s motion to withdraw at this time.     This court requires

that counsel inform Conklin, in writing, of the right to petition

the Supreme Court of the United States for further review. If

Conklin requests that a petition be filed, but counsel believes

that such a petition would 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 Conklin.    We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                          AFFIRMED




                              - 5 -

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