United States v. Darrell Witherspoon , 536 F. App'x 379 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4005
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL L. WITHERSPOON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00355-WO-1)
Submitted: June 24, 2013 Decided: July 31, 2013
Before SHEDD, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, Acting United States
Attorney, Robert M. Hamilton, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Witherspoon appeals from the sixty-month
sentence imposed upon revocation of his supervised release. He
contends that this sentence — which was the result of an upward
variance from the six-to-twelve-month policy statement range —
was plainly unreasonable. We affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). First we consider whether
the sentence imposed is procedurally or substantively
unreasonable. Id. at 438. In this initial inquiry, we take a
more deferential posture concerning issues of fact and the
exercise of discretion than undertaken for the reasonableness
review for Guidelines sentences. United States v. Moulden, 478
F.3d 652, 656 (4th Cir. 2007). If we find the sentence
procedurally or substantively unreasonable, we must then decide
whether it is “plainly” so. Id. at 657.
The district court correctly calculated and considered
Witherspoon’s advisory policy statement range, considered the
relevant factors, gave notice that it was considering an upward
variance sentence, gave the parties an opportunity to present
argument, and provided Witherspoon with an opportunity to
allocute. The sentence was therefore procedurally reasonable.
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The court also sufficiently explained its reasons for not
imposing a sentence within the policy statement range and stated
a proper basis for the upward variance sentence. We conclude
that the sixty-month revocation sentence is not plainly
unreasonable.
Accordingly, we affirm the 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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