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United States v. Markus McCormick, 16-4175 (2016)

Court: Court of Appeals for the Fourth Circuit Number: 16-4175 Visitors: 4
Filed: Oct. 24, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4175 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARKUS ODON MCCORMICK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-cr-00320-BO-1) Submitted: October 7, 2016 Decided: October 24, 2016 Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNa
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-4175


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARKUS ODON MCCORMICK,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-cr-00320-BO-1)


Submitted:   October 7, 2016                 Decided:   October 24, 2016


Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Jennifer C.
Leisten, Research & Writing Attorney, Raleigh, North Carolina,
for Appellant.     John Stuart Bruce, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Markus      Odon   McCormick        appeals      from     the     district       court’s

judgment revoking his supervised release and sentencing him to

50 months’ imprisonment.             McCormick argues on appeal that this

sentence    is    plainly    unreasonable            because      it   is    greater      than

necessary to achieve the purposes of sentencing.                        We affirm.

     “We will not disturb a district court’s revocation sentence

unless it falls outside the statutory maximum or is otherwise

‘plainly unreasonable.’”             United States v. Padgett, 
788 F.3d 370
, 373 (4th Cir.) (quoting United States v. Crudup, 
461 F.3d 433
, 437 (4th Cir. 2006)), cert. denied, 
136 S. Ct. 494
(2015).

“When    reviewing      whether      a     revocation          sentence        is    plainly

unreasonable, we must first determine whether it is unreasonable

at all.”    United States v. Thompson, 
595 F.3d 544
, 546 (4th Cir.

2010).      In   making     such    a    determination,           “we       strike    a   more

deferential appellate posture than we do when reviewing original

sentences.”       
Padgett, 788 F.3d at 373
(internal quotation marks

omitted).        “Nonetheless,       the   same       procedural        and    substantive

considerations      that     guide       our       review    of    original         sentences

inform   our     review     of   revocation           sentences        as    well.”        
Id. (internal quotation
marks and alteration omitted).

     A   supervised       release    revocation         sentence        is    procedurally

reasonable if the district court has considered the Sentencing

Guidelines’ Chapter Seven advisory policy statement range and

                                               2
the    18     U.S.C.      § 3553(a)      (2012)     factors       it   is    permitted      to

consider in a supervised release revocation case, see 18 U.S.C.

§ 3583(e) (2012); 
Crudup, 461 F.3d at 439-40
, and has adequately

explained the sentence chosen, although it need not explain the

sentence       in    as    much    detail      as    when     imposing        an    original

sentence.       
Thompson, 595 F.3d at 547
.                 A revocation sentence is

substantively reasonable if the district court states 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    we    find    a   revocation         sentence       unreasonable      must    we

decide whether it is “plainly” so.                      United States v. Moulden,

478 F.3d 652
,     657     (4th    Cir.   2007).         A    sentence    is    plainly

unreasonable if it is clearly or obviously unreasonable.                             
Id. We reject
     McCormick’s       contention        that     his    sentence     is

greater than necessary to achieve the purposes of sentencing in

his case.           It essentially asks this court to substitute its

judgment for that of the district court.                          While this court may

have    weighed        relevant        § 3553(a)     factors       differently       had   it

imposed       the    revocation         sentence,     we    defer      to    the    district

court’s decision that an above-policy statement range sentence

of 50 months’ imprisonment achieved the purposes of sentencing

in McCormick’s case.             See Gall v. United States, 
552 U.S. 38
, 51

(2007)       (explaining        that      appellate        courts      “must       give    due

deference to the district court’s decision that the § 3553(a)

                                               3
factors, on a whole, justify” the sentence imposed).                     In light

of the “extremely broad” discretion afforded to a district court

in determining the weight to be given each of the § 3553(a)

factors   in   imposing     sentence,     see    United    States   v.    Jeffery,

631 F.3d 669
, 679 (4th Cir. 2011), and the deferential posture

we take in reviewing the imposition of a revocation sentence,

Padgett, 788 F.3d at 373
, McCormick fails to establish that his

50-month prison term is substantively unreasonable. *

     Accordingly,      we     affirm    the     district      court’s    judgment.

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




     *  Near the end of his brief, McCormick appears to raise
procedural challenges to the 50-month sentence, arguing that the
district court failed to address his arguments in mitigation and
failed to explain adequately why the 50-month sentence was
sufficient.    We reject these challenges.   McCormick does not
specify   what   was  inadequate  about  the   district  court’s
explanation of the sentence.     Further, the district court’s
order detailing its reasons for imposing the sentence and its
comments at the revocation hearing make clear that it considered
both McCormick’s allocution and the arguments of McCormick’s
counsel in support of continued supervision.    The court viewed
McCormick’s allocution as having a “negative value” for
McCormick and found that counsel’s arguments did not outweigh
the considerations that supported imposition of the 50-month
sentence.



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