Filed: Feb. 18, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4710 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KEVIN MAYBERRY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:12-cr-00567-RBH-1) Submitted: February 12, 2015 Decided: February 18, 2015 Before MOTZ, WYNN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Fe
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4710 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KEVIN MAYBERRY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:12-cr-00567-RBH-1) Submitted: February 12, 2015 Decided: February 18, 2015 Before MOTZ, WYNN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Fed..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4710
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN MAYBERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00567-RBH-1)
Submitted: February 12, 2015 Decided: February 18, 2015
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. John C. Potterfield,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Mayberry appeals the district court’s judgment
revoking his supervised release and sentencing him to nine
months’ imprisonment followed by twenty-seven additional months
of supervised release. On appeal, counsel has filed a brief
pursuant to Anders v. California,
386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal but questioning
whether the court committed procedural or substantive error in
sentencing Mayberry. Mayberry was notified of his right to file
a pro se supplemental brief but has not done so. The Government
has declined to file a response brief. Following our careful
review of the record, we affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United
States v. Webb,
738 F.3d 638, 640 (4th Cir. 2013). We will
affirm a revocation sentence if it falls within the prescribed
statutory range and is not “plainly unreasonable.” United
States v. Crudup,
461 F.3d 433, 437-39 (4th Cir. 2006). In
making this determination, we first consider whether the
sentence imposed is procedurally or substantively unreasonable,
applying the same general considerations employed in review of
original sentences.
Id. at 438. “This initial inquiry takes a
more deferential appellate posture concerning issues of fact and
the exercise of discretion than reasonableness review for
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[G]uidelines sentences.” United States v. Moulden,
478 F.3d
652, 656 (4th Cir. 2007) (internal quotation marks omitted).
Only if we find the sentence unreasonable will we consider
whether it is “plainly” so.
Id. at 657 (internal quotation
marks omitted).
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Sentencing Guidelines’ Chapter Seven policy statements and the
18 U.S.C. § 3553(a) (2012) factors applicable to revocation
sentences. 18 U.S.C. § 3583(e) (2012);
Crudup, 461 F.3d at 439.
Although a district court must provide a statement of reasons
for the sentence it imposes, it “need not be as detailed or
specific when imposing a revocation sentence as it must be when
imposing a post-conviction sentence.” United States v.
Thompson,
595 F.3d 544, 547 (4th Cir. 2010). Nor do its reasons
need to be “couched in the precise language of § 3553(a),” so
long as the “reasons can be matched to a factor appropriate for
consideration under [§ 3553(a)] and [were] clearly tied to [the
defendant’s] particular situation.”
Moulden, 478 F.3d at 658.
A revocation sentence is substantively reasonable if
the district court stated a proper basis for concluding the
defendant should receive the sentence imposed, up to the
statutory maximum.
Crudup, 461 F.3d at 440. A sentence within
a properly-calculated policy statement range is presumed
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substantively reasonable. United States v. Allen,
491 F.3d 178,
193 (4th Cir. 2007).
Here, the district court properly considered the
advisory policy statement range and arguments from counsel and
Mayberry before sentencing Mayberry at the top of the policy
statement range. While the district court’s explanation for its
sentence was not detailed or lengthy, it clearly expressed the
court’s conclusion that Mayberry had abused the court’s prior
leniency by wholly neglecting his restitution obligation, and
that a sentence at the high end of the policy statement range
was necessary to sanction Mayberry’s unmitigated breach of
trust. See U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b)
(2011) (providing revocation sentence should “sanction primarily
the defendant’s breach of trust”). Neither Mayberry nor the
record rebuts the presumption of substantive reasonableness
accorded his sentence. See
Allen, 491 F.3d at 193. We
therefore discern no unreasonableness, plain or otherwise, in
Mayberry’s sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Mayberry, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Mayberry requests that a petition be filed, but
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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 Mayberry.
AFFIRMED
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