Filed: Oct. 27, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4030 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNE L. LEWIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:04-cr-00367-HEH-1) Submitted: August 12, 2016 Decided: October 27, 2016 Before WILKINSON, TRAXLER, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Geremy C. Kamens, Federal Publ
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4030 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNE L. LEWIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:04-cr-00367-HEH-1) Submitted: August 12, 2016 Decided: October 27, 2016 Before WILKINSON, TRAXLER, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Geremy C. Kamens, Federal Publi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4030
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE L. LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:04-cr-00367-HEH-1)
Submitted: August 12, 2016 Decided: October 27, 2016
Before WILKINSON, TRAXLER, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Valencia D. Roberts, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Erik Sean
Siebert, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne L. Lewis pled guilty to possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841 (2012),
and possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2012), and was
sentenced in 2005 to 120 months’ imprisonment and 4 years of
supervised release. Lewis completed his term of incarceration
and began his term of supervised release. While on release,
Lewis was convicted in state court of possession of heroin and
pled guilty in the district court to aiding and abetting Hobbs
Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (2012).
Lewis was sentenced to 71 months’ imprisonment and 3 years of
supervised release for the Hobbs Act robbery. Lewis
subsequently admitted the violations alleged against him in the
revocation petition, and the district court revoked his
supervised release and sentenced him to 6 months’ imprisonment,
to be served consecutively to the sentence imposed for the Hobbs
Act robbery. Lewis now appeals from the revocation order.
Counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious
grounds for appeal but questioning whether the 6-month
revocation sentence is plainly unreasonable because it was
ordered to run consecutively to Lewis’ sentence in the Hobbs Act
robbery case. Lewis was informed of his right to file a pro se
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supplemental brief, but he has not done so. The Government did
not file a brief. 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). A revocation
sentence that is both within the applicable statutory maximum
and not “plainly unreasonable” will be affirmed on appeal.
United States v. Padgett,
788 F.3d 370, 373 (4th Cir.),
cert. denied,
136 S. Ct. 494 (2015). In determining whether a
revocation sentence is plainly unreasonable, this court assesses
it for reasonableness, utilizing “the procedural and substantive
considerations” employed in evaluating an original criminal
sentence. United States v. Crudup,
461 F.3d 433, 438 (4th Cir.
2006).
A revocation sentence is procedurally reasonable if the
district court has considered both the policy statements
contained in Chapter Seven of the Sentencing Guidelines and the
18 U.S.C. § 3553(a) (2012) factors it is permitted to consider
in a supervised release revocation case, see 18 U.S.C. § 3583(e)
(2012); Crudup, 461 F.3d at 439-40. The district court also
must provide an explanation for the sentence chosen, although
this explanation “need not be as detailed or specific” as is
required for an original sentence. United States v. Thompson,
595 F.3d 544, 547 (4th Cir. 2010).
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A revocation sentence is substantively reasonable if the
district court states a proper basis for concluding the
defendant should receive the sentence imposed. Crudup, 461 F.3d
at 440. Only if we find a sentence unreasonable must we decide
whether it is “plainly” so.
Id. at 439. A sentence is plainly
unreasonable if it is clearly or obviously unreasonable.
Id.
Applying these principles, counsel’s challenge to the
reasonableness of Lewis’ sentence fails. In imposing a
consecutive sentence, the district court deferred to the policy
statement set forth in U.S. Sentencing Guidelines Manual
§ 7B1.3(f), p.s., which states that any prison term imposed on
revocation of supervised release “shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant
is serving, whether or not the sentence of imprisonment being
served resulted from the conduct that is the basis of the
revocation of . . . supervised release.” The district court’s
deference to this policy statement, while not required, was
proper. See
Thompson, 595 F.3d at 547; see also United
States v. Moulden,
478 F.3d 652, 656-57 (4th Cir. 2007).
To the extent counsel suggests that imposing a consecutive
sentence was substantively unreasonable in light of the parties’
agreement that a concurrent sentence was warranted and because
Lewis faced a 71-month prison term for the Hobbs Act robbery,
this argument is also without merit. It ignores the established
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principle that a revocation sentence is intended to punish the
defendant’s failure to abide by the terms of his supervised
release, which is separate and distinct from the punishment
imposed for any underlying criminal conduct. Crudup, 461 F.3d
at 437-38 (“‘[T]he sentence imposed upon revocation [is]
intended to sanction the violator for failing to abide by the
conditions of the court-ordered supervision.’” (quoting USSG
ch. 7, pt. A, introductory cmt. 3(b)) (second alteration in
original)). Lewis admitted both of the violations of supervised
release alleged in the revocation petition, one of which
involved the crime of possession of heroin and the other of
which involved the crime of interference with commerce by
robbery. These violations reflect Lewis’ serious disregard for
the terms of his supervision. The district court’s sentencing
comments make clear that it relied on the need to sanction
Lewis’ breach of trust in violating the terms of supervision and
the nature and circumstances of his violative behavior and his
history and characteristics in rejecting the request for a
concurrent sentence and imposing a consecutive 6-month one.
See 18 U.S.C. § 3553(a)(1); USSG ch. 7, pt. A, introductory cmt.
3(b); USSG § 7B1.3(f), p.s. Because the district court amply
justified the selected sentence — which fell below both the
statutory maximum and the advisory policy statement range — and
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relied on proper considerations in imposing it, we discern no
substantive unreasonableness in this sentence.
In accordance with Anders, we also have reviewed the
remainder of the record in this case and have found no
meritorious grounds for appeal. We therefore deny counsel’s
motion to withdraw from representation and affirm the district
court’s order. This court requires that counsel inform Lewis,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Lewis 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 Lewis.
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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