United States v. Gary Marcum , 610 F. App'x 289 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4099
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY LEE MARCUM,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:08-cr-00247-1)
Submitted: July 23, 2015 Decided: July 27, 2015
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael D. Payne, REDMAN AND PAYNE, ATTORNEYS AT LAW, Charleston,
West Virginia, for Appellant. R. Booth Goodwin, II, United States
Attorney, C. Haley Bunn, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Lee Marcum appeals the district court’s judgment
revoking his supervised release and sentencing him to 12 months’
imprisonment. On appeal, Marcum challenges both the revocation of
his supervised release and the reasonableness of his sentence. We
affirm.
We review the court’s decision to revoke a defendant’s
supervised release for abuse of discretion. United States v.
Padgett, ___ F.3d ___, ___, 2015 WL 3561289, at *1 (4th Cir. June
9, 2015). Marcum contends that the district court erred by
revoking his supervised release and imposing an active term of
imprisonment instead of ordering him to attend a drug treatment
program. We conclude that the court acted well within its
discretion when it revoked Marcum’s supervised release. In
addition to testing positive for drugs on nine occasions, Marcum
squandered the opportunity the court afforded him when it placed
the revocation petition in abeyance so that he could complete a
drug treatment program. The court was not obligated to give Marcum
a second chance. See 18 U.S.C. § 3583(d) (2012) (mandating only
that court consider drug treatment alternative to revocation when
defendant tests positive for controlled substances).
Marcum next contends that, when imposing sentence, the
district court erred by considering that he might have been driving
under the influence during his term of supervised release. While
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Marcum is correct that he was not charged with driving under the
influence, the court’s concern was not unreasonable, as Marcum was
charged with multiple traffic infractions around the time that he
tested positive for drugs. Because Marcum has failed to
demonstrate that his revocation sentence is unreasonable, much
less plainly so, we affirm the district court’s judgment. See
United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013) (“We will
affirm a revocation sentence if it is within the statutory maximum
and is not plainly unreasonable.” (internal quotation marks
omitted)).
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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