Filed: Mar. 30, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4626 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM MICHAEL BROOKS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:04-cr-00003-MR-1) Submitted: March 19, 2012 Decided: March 30, 2012 Before NIEMEYER, KING, and AGEE, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Denzil H
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4626 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM MICHAEL BROOKS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:04-cr-00003-MR-1) Submitted: March 19, 2012 Decided: March 30, 2012 Before NIEMEYER, KING, and AGEE, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Denzil H...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4626
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM MICHAEL BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:04-cr-00003-MR-1)
Submitted: March 19, 2012 Decided: March 30, 2012
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard L. Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Michael Brooks was found guilty of eight
violations of the conditions of supervised release. He appeals
the district court’s revocation of his term of supervised
release and its imposition of a sentence of seven months’
imprisonment, followed by three years of supervised release and
fifty hours of community service.
Counsel for Brooks submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but positing that Brooks
should not have received a sentence of imprisonment. Brooks was
notified of his right to file a pro se supplemental brief, but
he has not done so. The Government declined to file a response.
This court ordered the parties to submit supplement briefs
addressing the district court’s imposition of community service
in lieu of reimbursement of fees for court-appointed counsel in
the supervised release revocation proceeding. Counsel for
Brooks suggests that the imposition of community service is
unreasonable because Brooks is physically unable to comply. The
Government contends that the order is reasonable because the
district court had authority to impose a community service
requirement as a condition of supervised release.
In reviewing a sentence imposed upon revocation of
supervised release, this court “takes a more deferential
2
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (internal quotation marks omitted). We will affirm a
sentence imposed after revocation of supervised release if it is
not plainly unreasonable. United States v. Thompson,
595 F.3d
544, 546 (4th Cir. 2010).
This court first determines whether the sentence is
reasonable. A supervised release revocation sentence is
procedurally reasonable if the district court considered the
advisory policy statement range and the § 3553(a) factors
applicable to supervised release revocation. See Thompson, 595
F.3d at 547; 18 U.S.C. § 3583(e) (West 2000 & Supp. 2010). A
sentence is substantively reasonable if the district court
stated a proper basis for concluding the defendant should
receive the sentence imposed.
Crudup, 461 F.3d at 440.
If the sentence is found to be unreasonable, however,
the court next determines whether it is plainly unreasonable.
For a sentence to be plainly unreasonable, “it must run afoul of
clearly settled law.” Thompson, 595 F.3d at 548. After
reviewing the record, we conclude that the imposition of a
community service requirement in this case is plainly
unreasonable. Accordingly, we vacate the judgment and remand
for resentencing.
3
The district court imposed a sentence of seven months’
imprisonment and a three-year term of supervised release. The
court noted that Brooks still had an outstanding requirement to
pay court-appointed attorney’s fees from the original judgment.
It accordingly imposed fifty hours of community service in lieu
of reimbursement for court-appointed attorney’s fees related to
the revocation proceedings.
The district court was required to impose a term of
imprisonment because Brooks failed to comply with required drug
testing. 18 U.S.C. § 3583(g)(3). A review of the record
confirms that the district court properly calculated and
considered the Guidelines range and the § 3553(a) factors, and
sufficiently explained its selected sentence. The sentence of
seven months’ imprisonment coupled with the subsequent term of
three years’ supervised release is therefore not unreasonable,
let alone plainly so.
But the district court also imposed a requirement of
fifty hours of community service as a substitute for the
imposition of attorney’s fees. This it had no discretion to do.
Although Brooks agreed in his plea agreement to pay his court-
appointed attorney’s fees related to the original judgment, the
plea agreement did not apply to the subsequent revocation
proceedings. Brooks did not otherwise agree to pay attorney’s
fees related to the revocation proceedings and the record
4
indicates that Brooks is indigent. The district court thus
could not have held Brooks accountable for attorney’s fees
related to the revocation proceedings. 1 Because the imposition
of attorney’s fees would have been impermissible, the court was
therefore not entitled to substitute community service for such
an order. 2
We conclude that the district court’s order of
community service is plainly unreasonable. After a complete
review of the record in accordance with Anders, we find no other
meritorious issues. Accordingly, we vacate the district court’s
judgment and remand for resentencing. We deny Brooks’s motion
for appointment of new counsel. We further deny counsel’s
motions to withdraw and to expedite a decision.
This court requires that counsel inform Brooks, in
writing, of the right to petition the Supreme Court of the
1
Courts are authorized to require repayment of funds for
appointed counsel upon a finding that “funds are available for
payment from or on behalf of a person furnished representation.”
18 U.S.C. § 3006A(f) (2006). The district court must first
find, however, that identifiable assets are available to the
defendant. United States v. Moore, 666 F.3d 313, 322 (4th Cir.
2012). The record here does not suggest that Brooks had funds
available to pay counsel; in fact, it strongly suggests the
opposite.
2
Although the district court had authority to generally
impose a condition of community service concurrent with the term
of supervised release under U.S.S.G. § 5F1.3, it had no
discretion to impose community service as a substitute for
repayment of attorney’s fees.
5
United States for further review. If Brooks 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 Brooks. 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.
VACATED AND REMANDED
6
