Elawyers Elawyers
Ohio| Change

United States v. Kenneth McDaniel, 14-4906 (2015)

Court: Court of Appeals for the Fourth Circuit Number: 14-4906 Visitors: 8
Filed: Jun. 29, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4906 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH EUGENE MCDANIEL, JR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:06-cr-00088-NCT-1) Submitted: June 25, 2015 Decided: June 29, 2015 Before GREGORY, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Am
More
                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4906


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH EUGENE MCDANIEL, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00088-NCT-1)


Submitted:   June 25, 2015                 Decided:   June 29, 2015


Before GREGORY, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro,
North Carolina, for Appellant. Eric Lloyd Iverson, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Kenneth Eugene McDaniel, Jr., pled guilty in October 1996 to

conspiracy to possess with intent to distribute cocaine and cocaine

base (“crack”), in violation of 21 U.S.C. § 846 (2012).                           The

district    court     originally     sentenced     McDaniel   to    20    years    of

imprisonment, followed by 10 years of supervised release.                         The

court   subsequently      lowered      McDaniel’s    sentence      to    13   years.

McDaniel’s supervised release was revoked in 2006 and he was

sentenced to serve eight months’ imprisonment, followed by nine

years and four months of supervised release.                  McDaniel’s second

term of supervised release commenced in August 2007.

     A second petition to revoke McDaniel’s supervised release was

filed in January 2014 and amended in October 2014.                            At the

revocation hearing, McDaniel admitted four of the five violations

listed in the petition:            (1) failure to notify his probation

officer within 72 hours of a change in residence; (2) failure to

notify his probation officer within 72 hours of an arrest; (3)

twice testing positive for marijuana use; and (4) failure to work

regularly     since    July    2009.         The   court   revoked       McDaniel’s

supervision and sentenced him to 48 months’ imprisonment with no

additional term of supervised release.              McDaniel appeals.

     Appellate counsel has filed a brief pursuant to Anders v.

California,     
386 U.S. 738
    (1967),     questioning      whether       the

revocation sentence is reasonable.            Although informed of his right

                                         2
to file a pro se supplemental brief, McDaniel has not done so.

Finding no error, we affirm.

       We will uphold a district court’s revocation sentence unless

it falls outside the statutory maximum or is otherwise “plainly

unreasonable.”     United States v. Crudup, 
461 F.3d 433
, 437 (4th

Cir. 2006).    Only if a revocation sentence is unreasonable do we

determine whether it is plainly so.       United States v. Moulden, 
478 F.3d 652
, 656 (4th Cir. 2007).       In making this determination, we

strike “a more deferential appellate posture” than we do when

reviewing original sentences.       
Id. (internal quotation
marks and

citation omitted).    The sentencing court “must consider” both the

policy statements and the applicable policy statement range found

in Chapter 7 of the Sentencing Guidelines Manual, as well as “the

applicable [18 U.S.C.] § 3553(a) [2012] factors.”            
Moulden, 478 F.3d at 656
; see also United States v. Webb, 
738 F.3d 638
, 641

(4th Cir. 2013).    A sentence within the policy statement range is

“presumed    reasonable,”   
Webb, 738 F.3d at 642
,   though   “the

sentencing court retains broad discretion to . . . impose a term

of imprisonment up to the statutory maximum,” 
Moulden, 478 F.3d at 657
.

       We have reviewed the record and conclude that the sentence

imposed is both procedurally and substantively reasonable; it

follows, therefore, that the sentence is not plainly unreasonable.

In accordance with Anders, we have examined the entire record and

                                    3
have found no meritorious issues for appeal.       Accordingly, we

affirm the judgment of the district court.     This court requires

that counsel inform McDaniel, in writing, of the right to petition

the Supreme Court of the United States for further review.      If

McDaniel requests that a petition be filed, but 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 McDaniel.   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.



                                                          AFFIRMED




                                4

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer