Filed: Apr. 14, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5059 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SHERRI LYNN SMITH, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:04-cr-00219-HEH-1) Submitted: March 28, 2011 Decided: April 14, 2011 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Pu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5059 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SHERRI LYNN SMITH, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:04-cr-00219-HEH-1) Submitted: March 28, 2011 Decided: April 14, 2011 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Pub..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5059
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHERRI LYNN SMITH,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:04-cr-00219-HEH-1)
Submitted: March 28, 2011 Decided: April 14, 2011
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Richmond, Virginia, for Appellant. Laura
Colombell Marshall, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherri Lynn Smith pled guilty to conspiracy to commit
bank fraud, in violation of 18 U.S.C. § 1349 (2006), and was
sentenced in November 2004 to thirty-six months’ imprisonment,
followed by a five-year term of supervised release. Smith’s
prison term was subsequently reduced to twenty-seven months as a
result of her substantial assistance to the Government, see Fed.
R. Crim. P. 35(b). Smith was released from imprisonment in June
2006. After Smith failed to comply with the condition of her
supervised release that she report to her probation officer
within seventy-two hours of her release, Smith’s supervised
release was revoked and she was sentenced in March 2007 to
eighteen months’ imprisonment, followed by forty-two months of
supervised release. Smith was released from imprisonment in
July 2008 and again began serving her term of supervised
release.
In February 2010, Smith’s probation officer petitioned
the district court to revoke Smith’s supervised release,
alleging in the petition that Smith had violated her supervised
release by testing positive for cocaine and being arrested and
charged in state court with credit card fraud, intentional
damage, grand larceny, and credit card larceny. Smith
ultimately pled guilty in Virginia state court to two counts of
petit larceny. At the revocation hearing in the district court,
2
Smith admitted these convictions and to testing positive for
cocaine. The district court revoked Smith’s supervised release
and ultimately sentenced her to twenty-four months’
imprisonment, followed by an eighteen-month term of supervised
release. On appeal, Smith’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
Smith’s revocation sentence is plainly unreasonable. Smith has
filed a letter concerning her sentence that we construe as a pro
se supplemental brief. We affirm.
A district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm a sentence imposed after revocation of supervised release
if it is within the applicable statutory maximum and is not
“plainly unreasonable.” United States v. Crudup,
461 F.3d 433,
437, 439-40 (4th Cir. 2006). In determining whether a
revocation sentence is plainly unreasonable, we first assess the
sentence for unreasonableness, “follow[ing] generally the
procedural and substantive considerations that we employ in our
review of original sentences.”
Id. at 438. A supervised
release revocation sentence is procedurally reasonable if the
district court considered the Sentencing Guidelines’ Chapter 7
advisory policy statements and the 18 U.S.C. § 3553(a) (2006)
3
factors that it is permitted to consider in a supervised release
revocation case. See 18 U.S.C.A. § 3583(e) (West 2006 & Supp.
2010); Crudup, 461 F.3d at 439. Although the court need not
explain the reasons for imposing a revocation sentence in as
much detail as when it imposes an original sentence, “it still
must provide a statement of reasons for the sentence imposed.”
Thompson, 595 F.3d at 547 (internal quotation marks omitted). A
revocation sentence is substantively reasonable if the district
court stated a proper basis for concluding the defendant should
receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440. Only if a sentence is found
procedurally or substantively unreasonable will we “then decide
whether the sentence is plainly unreasonable.”
Id. at 439
(emphasis omitted). A sentence is “plainly unreasonable” if it
is clearly or obviously unreasonable.
Id.
After review of the record, we conclude that the
revocation sentence is not plainly unreasonable. The
twenty-four month prison term and the eighteen-month term of
supervised release do not exceed the applicable maximums allowed
by statute, see 18 U.S.C. § 3559(a)(2) (2006); 18 U.S.C.A.
§ 3583(e)(3), (h). The district court considered the argument
of Smith’s counsel and relevant § 3553(a) factors, addressing on
the record Smith’s history and characteristics, the nature and
circumstances of her violative behavior, the need for the
4
sentence to deter Smith, and Smith’s breach of trust following
prior lenient treatment. See 18 U.S.C. § 3553(a)(1), (a)(2)(B)-
(C); USSG Ch. 7, Pt. A, introductory cmt. 3(b). The district
court adequately explained its rationale for imposing sentence,
and the reasons relied upon are proper bases for the sentence
imposed. Unfortunately, the district court considered an
erroneously-calculated advisory policy statement range; *
accordingly, the revocation sentence is unreasonable. However,
we easily conclude that Smith’s sentence is not “plainly
unreasonable” because the sentence does not exceed the
applicable statutory maximums, and the record does not contain
any basis upon which to conclude that the imposed sentence is
clearly or obviously unreasonable. See Crudup, 461 F.3d at 439.
In accordance with Anders, we have reviewed Smith’s
pro se supplemental brief and the remainder of the record and
have found no meritorious issues remaining for appeal. We
therefore affirm the district court’s order revoking Smith’s
supervised release and imposing the twenty-four month prison
sentence and the eighteen-month term of supervised release.
*
The probation officer calculated an advisory policy
statement range of eighteen to twenty-four months’ imprisonment,
see U.S. Sentencing Guidelines Manual (“USSG”) (2009). Properly
calculated, the advisory policy statement range applicable to
Smith was seven to thirteen months’ imprisonment, see USSG
§§ 7B1.1(a)(3), p.s., 7B1.4(a), p.s.; Va. Code Ann.
§§ 18.2-11(a), 18.2-96(2) (2009).
5
This court requires that counsel inform Smith, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Smith 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 Smith.
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
6
