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Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4863 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LORINDA LEIGH CONKLIN, Defendant -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 Affirmed by unpublished per curiam opinion.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
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4863 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LORINDA LEIGH CONKLIN, Defendant -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 Affirmed by unpublished per curiam opinion.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, Vir..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
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