Filed: Feb. 17, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4879 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THELBERT GRAINGER, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:02-cr-00037-F-1) Submitted: January 27, 2011 Decided: February 17, 2011 Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per cur
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4879 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THELBERT GRAINGER, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:02-cr-00037-F-1) Submitted: January 27, 2011 Decided: February 17, 2011 Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4879
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THELBERT GRAINGER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:02-cr-00037-F-1)
Submitted: January 27, 2011 Decided: February 17, 2011
Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thelbert Grainger, Jr., appeals the district court’s
judgment revoking supervised release and imposing a twenty-four
month sentence. We affirm.
Grainger pled guilty to one count of false statement
to a firearms dealer during acquisition of a firearm in
violation of 18 U.S.C. § 922(a)(6) (2000) in 2002. He was
sentenced to 87 months’ imprisonment to be followed by 36
months’ supervised release. His term of supervision commenced
on January 13, 2009. His short tenure of supervised release was
characterized by significant violations, including testing
positive for marijuana, failing to pay court-imposed fines, and
absconding from supervision. The Probation Office ultimately
petitioned the district court for revocation. After a hearing,
the court found that Grainger had six supervised release
violations and imposed a twenty-four month sentence. His
advisory Guidelines range was seven to thirteen months. On
appeal, Grainger argues that the twenty-four month sentence
imposed by the district court was plainly unreasonable. We do
not agree.
This court reviews the district court’s revocation of
supervised release for an abuse of discretion. United States v.
Pregent, 190 F.3d 279, 282 (4th Cir. 1999). A sentence imposed
after revocation of supervised release should be affirmed if it
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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). This court first reviews the sentence for
reasonableness, “follow[ing] generally the procedural and
substantive considerations that [are] employ[ed] in [the] review
of original sentences, . . . with some necessary modifications
to take into account the unique nature of supervised release
revocation sentences.”
Id. at 438-39; see United States v.
Finley,
531 F.3d 288, 294 (4th Cir. 2008) (“In applying the
‘plainly unreasonable’ standard, we first determine, using the
instructions given in Gall [v. United States,
552 U.S. 38
(2007)], whether a sentence is ‘unreasonable.’”).
Although the district court must consider the Chapter
7 policy statements and the requirements of § 3553(a) and
§ 3583, “the sentencing court retains broad discretion to revoke
a defendant’s probation [or supervised release] and impose a
term of imprisonment up to the statutory maximum.” United
States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (citing
Crudup, 461 F.3d at 439). In this case, the statutory maximum
revocation sentence was two years’ imprisonment.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall, 552 U.S. at 51. This
review requires consideration of both the procedural and
substantive reasonableness of a sentence. Id.; see United
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States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After
determining whether the district court properly calculated the
defendant’s advisory Guideline range, this court must decide
whether the district court considered the § 3553(a) factors,
analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence.
Lynn, 592 F.3d at
575-76; see United States v. Carter,
564 F.3d 325, 330 (4th Cir.
2009). Properly preserved claims of procedural error are
subject to harmless error review.
Lynn, 592 F.3d at 576. If
the sentence is free of significant procedural error, the
appellate court reviews the substantive reasonableness of the
sentence.
Id. at 575; United States v. Pauley,
511 F.3d 468,
473 (4th Cir. 2007).
Grainger neither objected to his sentence, nor did he
request a sentence different in duration or manner from that
which he received. Accordingly, our initial reasonableness
review is for plain error. Lynn, 592 F.3d at 577. To establish
plain error, “[Grainger] must show that an error occurred, that
the error was plain, and that the error affected his substantial
rights.” United States v. Muhammad,
478 F.3d 247, 249
(4th Cir. 2007). Even if Grainger satisfies these requirements,
“correction of the error remains within [the court’s]
discretion, which [the court] should not exercise . . . unless
the error seriously affect[s] the fairness, integrity or public
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reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted).
With regard to Grainger’s claim that the court did not
provide an adequate explanation of his sentence and should have
further considered the Chapter 7 policy statements and the
§ 3553(a) factors, we have reviewed the record and we do not
agree. The district court clearly discussed Grainger’s lengthy
criminal history, the seriousness of his violations, and the
need for Grainger to receive substance abuse treatment. We
conclude that the court did not err, let alone plainly so.
Consequently, we need not decide whether the sentence was
plainly procedurally unreasonable within the meaning of Crudup.
Grainger also challenges the substantive
reasonableness of his sentence. We again note the broad
discretion afforded to district courts in imposing a sentence
within the statutory maximum on violations of supervised
release. In light of this discretion, and after review of the
record, we conclude that the sentence imposed was substantively
reasonable. Again, we need not reach the issue of whether it
was plainly unreasonable.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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