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United States v. Timothy Brown, 12-4716 (2013)

Court: Court of Appeals for the Fourth Circuit Number: 12-4716 Visitors: 14
Filed: Apr. 04, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4716 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY JARRETT BROWN, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:10-cr-00077-1) Submitted: March 8, 2013 Decided: April 4, 2013 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinio
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                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4716


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY JARRETT BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:10-cr-00077-1)


Submitted:   March 8, 2013                 Decided:   April 4, 2013


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant.    Blaire L. Malkin, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Timothy    Jarrett      Brown    appeals         the    district       court’s

order revoking his supervised release and imposing a sentence of

twenty-four months’ imprisonment.                 On appeal, counsel has filed

a brief pursuant to Anders v. California, 
386 U.S. 738
 (1967),

asserting that there are no meritorious issues for appeal but

questioning        whether     the     district       court       imposed        a    plainly

unreasonable        sentence        considering    Brown’s            mental     illnesses.

Brown was informed of his right to file a pro se supplemental

brief, but he has not done so.                 For the reasons that follow, 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       revocation        sentence     if        it        is   not       “plainly

unreasonable.”        United States v. Crudup, 
461 F.3d 433
, 439 (4th

Cir. 2006).         In making this determination, we first consider

whether the sentence imposed is procedurally or substantively

unreasonable.            Id.   at     438-49.         A    revocation          sentence       is

procedurally reasonable if the district court has considered the

advisory   policy        statement     range    and       the    18    U.S.C.    §    3553(a)

(2006) factors applicable to supervised release revocation.                               461

F.3d at 438-40.           “A court need not be as detailed or specific

when imposing a revocation sentence as it must be when imposing

                                           2
a    post-conviction        sentence,         but      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 its sentencing decision.                               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.

               We have reviewed the revocation sentence and conclude

that     the     sentence       is     both   procedurally           and     substantively

reasonable.           The twenty-four-month sentence does not exceed the

applicable            statutory         maximum        of         twenty-four         months’

imprisonment.           Further, the district court properly considered

the advisory Guidelines policy statement range and applicable

§ 3553(a) factors.          Moreover, the district court stated a proper

basis for imposing the sentence, emphasizing the violent nature

of     Brown’s        offense     and      criminal         history,       the     need     for

deterrence, and the need to protect the public.                            Accordingly, we

need not address whether the revocation sentence was plainly

unreasonable.

               Counsel     also       questions     whether        the     district       court

should       have     granted     a    downward     departure        based       on   Brown’s

diminished capacity.              No motion for a downward departure based

on Brown’s diminished capacity was raised in the district court.

                                              3
Thus, we have reviewed this claim for plain error and find none.

See United States v. Hamilton, 
701 F.3d 404
, 410 (4th Cir. 2012)

(discussing standard of review).

            In accordance with Anders, we have examined the entire

record    for    any     meritorious     issues          and    have   found      none.     We

therefore       affirm    the    district     court’s          judgment.          This    court

requires that counsel inform Brown, in writing, of his right to

petition    the    Supreme       Court   of       the    United      States    for   further

review.     If Brown requests that a petition be filed, but counsel

believes that such a petition would be frivolous, counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

Brown.     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




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Source:  CourtListener

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