Filed: Mar. 27, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4294 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KIM A. PRATER, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:01-cr-00018-jpj-1; 1:03-cr-00075-jpj-1) Submitted: March 10, 2009 Decided: March 27, 2009 Before TRAXLER, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian K. Mille
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4294 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KIM A. PRATER, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:01-cr-00018-jpj-1; 1:03-cr-00075-jpj-1) Submitted: March 10, 2009 Decided: March 27, 2009 Before TRAXLER, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian K. Miller..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4294
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KIM A. PRATER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:01-cr-00018-jpj-1; 1:03-cr-00075-jpj-1)
Submitted: March 10, 2009 Decided: March 27, 2009
Before TRAXLER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian K. Miller, LAW OFFICES OF BRIAN K. MILLER, P.C., Richmond,
Virginia, for Appellant. Julia C. Dudley, Acting United States
Attorney, Randy Ramseyer, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kim A. Prater appeals the district court’s order
revoking his supervised release and sentencing him to sixty-six
months’ imprisonment. We have reviewed the record and find no
error. Accordingly, we deny his motion to file a pro se
supplemental brief and affirm.
Prater was originally found guilty of ten counts of
filing false claims with the Internal Revenue Service; however,
after two substantial assistance motions by the Government,
Prater was sentenced to only eighteen months’ imprisonment.
Prater was also convicted of failing to surrender for service of
sentence and sentenced to an additional four months’
imprisonment. Prater was sentenced to a period of supervised
release for both convictions. He began his supervised release
on February 14, 2005.
Prater’s probation officer filed a supervised release
violation report that alleged sixteen separate violations. At
the revocation hearing, the district court found that Prater
committed each of the alleged violations and revoked his
supervised release. The district court then sentenced Prater to
six months’ imprisonment on each of the ten false claim counts
and an additional six months’ imprisonment on his failure to
surrender conviction, all to run consecutively. On appeal,
Prater contends that his sentence was plainly unreasonable.
2
This court reviews a sentence imposed as a result of a
supervised release violation to determine whether the sentence
was plainly unreasonable. United States v. Crudup, 461 F.3d
433, 438 (4th Cir. 2006). The first step in this analysis is
whether the sentence was unreasonable.
Id. This court, in
determining reasonableness, follows generally the procedural and
substantive considerations employed in reviewing original
sentences.
Id. If a sentence imposed after a revocation is not
unreasonable, this court will not proceed to the second prong of
the analysis - whether the sentence was plainly unreasonable.
Id. at 439.
Although a district court must consider the policy
statements in Chapter Seven of the sentencing guidelines along
with the statutory requirements of 18 U.S.C. § 3583 (2006) and
18 U.S.C. § 3553(a) (2006), the district court ultimately has
broad discretion to revoke its previous sentence and impose a
term of imprisonment up to the statutory maximum.
Crudup, 461
F.3d at 439 (quoting United States v. Lewis,
424 F.3d 239, 244
(2d Cir. 2005)). On review, this court will assume a
deferential appellate posture concerning issues of fact and the
exercise of discretion.
Id.
Prater argues that his sentence was plainly
unreasonable because the Government failed to prove that he
obtained property by false pretenses. Prater contends that any
3
representation that occurred in the transactions was as to a
future event, and Virginia law requires a misrepresentation of a
present or past fact. Even assuming that Prater is correct, the
evidence in the record is more than sufficient to establish by a
preponderance of the evidence that Prater made false
representations at the time he received the property. See 18
U.S.C. § 3583(e)(3) (2006) (providing that a violation of
supervised release need only be proven by a preponderance of the
evidence). The district court did not err in relying on this
evidence to establish that Prater violated his supervised
release.
Prater’s sentence was also substantively reasonable.
Upon revocation of his supervised release, Prater faced a
possible sentence of twenty-two years’ imprisonment. Prater
admitted to multiple violations of the terms of his supervised
release. Moreover, after receiving the benefit of two
substantial assistance departures, Prater continued to engage in
financial crimes that defrauded innocent third parties. We thus
conclude the district court did not err in sentencing Prater.
Accordingly, we deny Prater’s motion to file a pro se
supplemental brief and affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions of the parties are adequately presented in the
4
materials before the court and argument would not aid the
decisional process.
AFFIRMED
5
