Filed: Nov. 21, 2013
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4499 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON DWAYNE LEMMON, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:04-cr-70060-NKM-1) Submitted: November 19, 2013 Decided: November 21, 2013 Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4499 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON DWAYNE LEMMON, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:04-cr-70060-NKM-1) Submitted: November 19, 2013 Decided: November 21, 2013 Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opin..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4499
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON DWAYNE LEMMON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:04-cr-70060-NKM-1)
Submitted: November 19, 2013 Decided: November 21, 2013
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence,
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Donald R.
Wolthuis, Assistant United States Attorney, Michael J. Freeman,
Special Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Dwayne Lemmon appeals the nine-month sentence
imposed for violating his supervised release. Lemmon raises one
issue on appeal: whether the district court imposed a plainly
unreasonable sentence based on bias against him and improper
consideration of the sentencing factors set forth in 18 U.S.C. §
3583(e) (2012). For the reasons that follow, we affirm.
Following argument, the district court found that
Lemmon had commmitted Grade C violations of release, and that,
with his criminal history category of I, his advisory policy
statement range was 3-9 months. See U.S. Sentencing Guidelines
Manual (“USSG”) § 7B1.4(a), p.s. (2012). The court expressly
applied relevant 18 U.S.C. § 3553(a) (2012) factors applicable
to revocation sentences under § 3583(e) in determining the
sentence, noted Lemmon’s breach of trust while on supervision,
and remarked on his untruthfulness with his probation officer,
the officers involved in his vehicle stop (which led to his
Maryland state conviction for assuming another identity to avoid
prosecution for a crime), and the court. The court’s
observation that Lemmon was a liar, and thus his testimony was
incredible does not demonstrate judicial bias or grounds for
recusal because the judge’s finding was based on facts
introduced or events occurring in the course of the revocation
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proceeding. See United States v. Lentz, 524 F.3d 501, 530 (4th
Cir. 2008) (providing standard for judicial bias claim).
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 sentence imposed after revocation of supervised release
if it is within the applicable statutory maximum and not plainly
unreasonable. United States v. Crudup,
461 F.3d 433, 437, 439-
40 (4th Cir. 2006).
In determining whether a revocation sentence is
plainly unreasonable, we first assess the sentence for
unreasonableness, following generally the procedural and
substantive considerations that we employ in our review of
original sentences. Id. at 438. A supervised release
revocation sentence is procedurally reasonable if the district
court considered the Sentencing Guidelines’ Chapter 7 advisory
policy statements and the § 3553(a) factors it is permitted to
consider in a supervised release revocation case. See 18 U.S.C.
§ 3583(e);
Crudup, 461 F.3d at 439-40. A district court need
not explain the reasons for imposing a revocation sentence in as
much detail as when it imposes an original sentence, and a
revocation 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
3
maximum. Thompson, 595 F.3d at 547;
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.
Crudup, 461 F.3d at 439.
Lemmon alleges that his sentence is procedurally
unreasonable because the district court improperly considered
the § 3553(a) factors in sentencing him. We note that, in
explaining the sentence, the court specifically addressed
Lemmon’s mitigation argument regarding his children, discussed
Lemmon’s breach of the court’s trust, the nature and
circumstances of the violations, the history and characteristics
of the defendant, and the need to protect the public.
Accordingly, we find the district court did not plainly err in
applying the § 3553(a) factors and adequately explained its
decision to sentence Lemmon within the advisory policy statement
range. See Thompson, 595 F.3d at 547; USSG § 7B1.4(a), p.s.
Accordingly, we affirm the sentence. 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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