United States v. Grady Rushing , 670 F. App'x 180 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GRADY LEE RUSHING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:08-cr-00192-MOC-1)
Submitted: October 19, 2016 Decided: November 14, 2016
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Grady Lee Rushing appeals the district court’s judgment
revoking his supervised release and imposing a sentence of time
served, plus an additional four-year term of supervised release.
On appeal, Rushing assigns error to the district court’s refusal
to eliminate the portion of his original criminal judgment
mandating reimbursement for the costs of Rushing’s court-
appointed attorney. Rushing also challenges the procedural
reasonableness of the revocation sentence in terms of the
adequacy of the district court’s explanation for the selected
term of supervised release. For the reasons that follow, we
affirm.
Rushing first asserts that, pursuant to this court’s
decision in United States v. Moore, 666 F.3d 313, 320-24 (4th
Cir. 2012) (holding that a fee-reimbursement order must be based
on the district court’s “finding that there are specific funds,
assets, or asset streams (or the fixed right to those funds,
assets or asset streams) that are (1) identified by the court
and (2) available to the defendant for the repayment of the
court-appointed attorneys’ fees”), the reimbursement provision
in the original criminal judgment is invalid, and that the
district court erred in declining to excise this portion of that
judgment. Assuming without deciding that this is correct and
that the reimbursement order would not stand after Moore,
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Rushing fails to identify any legal authority for the
proposition that the district court could alter the
reimbursement order — which was part of the original criminal
judgment — in the context of adjudicating a supervised release
revocation petition. Cf. United States v. Willis, 563 F.3d 168,
170 (5th Cir. 2009) (“It is by now well-established that a
defendant may not use the appeal of a revocation of supervised
release to challenge an underlying conviction or original
sentence.”); United States v. Eskridge, 445 F.3d 930, 934 (7th
Cir. 2006) (explaining that “[a] district judge may still
correct a final judgment in a criminal case to reflect the
sentence he actually imposed but he cannot change the sentence
he did impose even if the sentence was erroneous”). We thus
reject Rushing’s first assignment of error.
Next, Rushing challenges the adequacy of the district
court’s explanation for imposing an additional four-year term of
supervised release. “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). This
court “will affirm a revocation sentence if it is within the
statutory maximum and is not plainly unreasonable.” Id.(internal quotation marks omitted). “When reviewing whether a
revocation sentence is plainly unreasonable, we must first
determine whether it is unreasonable at all.” United States v.
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Thompson, 595 F.3d 544, 546 (4th Cir. 2010). A revocation
sentence is procedurally reasonable if the district court
adequately explains the sentence after considering the policy
statements in Chapter Seven of the Sentencing Guidelines and the
applicable 18 U.S.C. § 3553(a) (2012) factors. See 18 U.S.C.
§ 3583(e) (2012); Thompson, 595 F.3d at 546-47.
The transcript of the revocation hearing reveals that the
district court imposed a new, four-year term of supervised
release on Rushing for two main reasons: (1) Rushing’s
demonstrable need for supervision and guidance as he adapted to
living a law-abiding life; and (2) to protect the public from
further criminal activity by Rushing while he made this
adjustment. This explanation reflects the district court’s
consideration of permissible factors, see 18 U.S.C. §§ 3583(e),
3553(a)(1), (a)(2)(C), and more than satisfies the above
standard.
We therefore affirm the district court’s revocation
judgment. 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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