United States v. Terry , 334 F. App'x 576 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4985
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GARY IVAN TERRY,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:03-cr-00299-NCT-1)
Submitted: May 28, 2009 Decided: June 30, 2009
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, PA, Winston-Salem, North
Carolina, for Appellant. Lisa Blue Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Ivan Terry appeals from the district court’s
order denying his motion to compel specific performance of the
plea agreement in his underlying criminal case, revoking his
supervised release, and imposing a seven-month prison term. On
appeal, Terry’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning the decision to
revoke Terry’s supervised release and the denial of his motion
to compel. Although informed of his right to do so, Terry has
not filed a pro se supplemental brief. After a thorough review
of the record, we affirm.
After considering the applicable 18 U.S.C. § 3553(a)
(2006) factors, a district court may revoke a term of supervised
release upon finding by a preponderance of the evidence that the
defendant violated a condition of supervised release. 18 U.S.C.
§ 3583(e)(3) (2006). Appellate courts review the decision to
revoke supervised release for an abuse of discretion and the
factual findings and credibility determinations for clear error.
See United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.
2003).
After reviewing the evidence presented during the
hearing, we find that the district court did not clearly err in
finding by a preponderance of the evidence that Terry failed to
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make the monthly court-ordered restitution payments, opened
credit accounts without authorization, and failed to notify or
permit the probation officer to notify his employer of third
party risks that may be occasioned by Terry’s criminal record,
personal history, or characteristics. Accordingly, the district
court did not abuse its discretion in finding that Terry
violated the conditions of his supervised release.
We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
maximum and is not plainly unreasonable. See United States v.
Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). We first
review the sentence for unreasonableness, “follow[ing] generally
the procedural and substantive considerations that we employ in
our review of original sentences, . . . with some necessary
modifications to take into account the unique nature of
supervised release revocation sentences.” Id. at 438-39. If we
conclude that a sentence is not unreasonable, we will affirm the
sentence. Id. at 439. Only if a sentence is found procedurally
or substantively unreasonable will we “decide whether the
sentence is plainly unreasonable.” Id.A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Chapter Seven advisory policy statement and the 18 U.S.C.
§ 3553(a) factors that it is permitted to consider in a
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supervised release revocation case. See 18 U.S.C. § 3583(e);
Crudup, 461 F.3d at 440. Such a 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
is plainly unreasonable if it is clearly or obviously
unreasonable. Id. at 439.
Addressing the § 3553(a) factors as applied to Terry’s
circumstances, the district court expressed a need for the
sentence to deter others from similar conduct, but noted Terry’s
firm belief that his conviction was improper. The court then
imposed a sentence of seven months imprisonment with no
additional term of supervised release. We find that Terry’s
sentence was not “plainly unreasonable” because it was within
the recommended Guidelines range of 3 to 9 months, well below
the 17-month maximum term that the court could have imposed, and
the record does not contain any basis on which to conclude that
the imposed sentence is clearly or obviously unreasonable.
In accordance with Anders, we have reviewed the entire
record in this case and found no meritorious issues for appeal.
Accordingly, we deny Terry’s motion to place the case in
abeyance, and we affirm the district court’s judgment. This
court requires that counsel inform Terry, in writing, of his
right to petition the Supreme Court of the United States for
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further review. If Terry 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 Terry. 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
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