United States v. Brian Anderson ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4696
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN GRAY ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:14-cr-00235-WO-1)
Submitted: April 22, 2020 Decided: April 28, 2020
Before DIAZ, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Ira Knight, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for
Appellant. Matthew G.T. Martin, United States Attorney, Michael F. Joseph, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Gray Anderson appeals from the 24-month sentence imposed upon revocation
of his supervised release. On appeal, Anderson contends that the sentence imposed is
procedurally and substantively unreasonable. Concluding that the sentence is not plainly
unreasonable, 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). “We will
affirm a revocation sentence if it is within the statutory maximum and is not plainly
unreasonable.” Id. (internal quotation marks omitted). This Court “must determine
whether the sentence is procedurally or substantively unreasonable,” evaluating the same
general considerations employed in review of original sentences. United States v. Slappy,
872 F.3d 202, 207 (4th Cir. 2017). Only if this court finds a sentence unreasonable must
it determine “whether it [i]s plainly so.” United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010).
Citing Rule 32(h), Fed. R. Crim. P., Anderson argues that his revocation sentence
is procedurally unreasonable because the court did not provide notice of its intention to
impose a sentence above the policy statement range. However, a revocation sentence that
is above the policy statement range is not a departure and is not governed by the rules for
departures. United States v. Davis, 53 F.3d 638, 641 n.15 (4th Cir. 1995). Instead, Rule
32.1 of the Federal Rules of Criminal Procedure governs supervised release revocation
procedures. United States v. Daoust, 888 F.3d 571, 575 (1st Cir. 2018). Because Rule
32.1 does not require a district court to notify a defendant of its intent to vary from the
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advisory policy statement range, we conclude that the court did not commit procedural
error by failing to provide notice.
Anderson also asserts that his sentence is substantively unreasonable, arguing that,
in sentencing him to the statutory maximum, the court overemphasized the need to protect
the public from his recidivist drug abuse. “[A] revocation sentence is substantively
reasonable if the court sufficiently states a proper basis for its conclusion that the defendant
should receive the sentence imposed.” Slappy, 872 F.3d at 207 (alteration and internal
quotation marks omitted).
At the supervised release revocation hearing, the court found that Anderson’s
criminal history reflected that his recidivist substance abuse led him to other criminal
conduct, making him a danger to the community and, hence, the court concluded that it
needed to impose a sentence to protect the public. See 18 U.S.C. § 3583(e) (2018)
(identifying 18 U.S.C. § 3553(a) (2018) factors courts may consider in imposing revocation
sentences, including need to protect public and history and characteristics of defendant).
The court remarked that when it previously revoked Anderson’s supervised release, it
imposed a sentence that specifically accommodated Anderson’s request to participate in a
particular drug treatment program and that Anderson then flagrantly refused to cooperate
with the very program that he himself had requested. The court’s comments indicate that
it also imposed the 24-month sentence to sanction Anderson’s breach of trust in this case.
See U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. 3(b) (2014) (“[A]t
revocation the [district] court should sanction primarily the defendant’s breach of trust.”).
We conclude that the sentence in this case is substantively reasonable.
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The sentence imposed by the district court is not unreasonable and therefore is not
plainly unreasonable. Accordingly, we affirm the 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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