United States v. Gary Baker ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4287
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY RICHARD BAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. Frank W. Volk, District Judge. (5:99-cr-00217-1)
Submitted: November 19, 2020 Decided: November 23, 2020
Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard W. Weston, WESTON | ROBERTSON, Hurricane, West Virginia, for Appellant.
John Lanier File, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Richard Baker appeals from the district court’s judgment revoking his
supervised release and sentencing him to 12 months’ imprisonment. Counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but questioning whether the district court imposed a plainly
unreasonable sentence and whether the court erred by failing to prospectively prohibit state
prosecution of Baker for the offense leading to the revocation of Baker’s supervised
release. Although advised of his right to file a supplemental pro se brief, Baker has not
done so. 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). “When reviewing whether a
revocation sentence is plainly unreasonable, we must first determine whether it is
unreasonable at all.” United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). In
making this determination, we are guided by “the same procedural and substantive
considerations that guide our review of original sentences.” United States v. Padgett, 788
F.3d 370, 373 (4th Cir. 2015) (brackets and internal quotation marks omitted).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding
Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) factors.” United
States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnotes omitted). “[A] revocation
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sentence is substantively reasonable if the court sufficiently states a proper basis for its
conclusion that the defendant should receive the sentence imposed.” Id. (brackets and
internal quotation marks omitted). Our review of the record leads us to conclude that
Baker’s 12-month sentence is below both the statutory maximum and the policy statement
range and is not unreasonable, plainly or otherwise.
As for Baker’s remaining argument, there is no authority supporting the proposition
that a district court has the authority to prospectively limit a state’s authority to prosecute
Baker for the offense that led to the revocation of his supervised release. In any event, the
court’s failure to do so would not be in error, as the Double Jeopardy Clause does not
prohibit a defendant from receiving “both a new sentence for the new offense and a
revocation sentence” for the offense resulting in revocation of his supervised release.
United States v. Jackson, 952 F.3d 492, 500-01 (4th Cir. 2020).
In accordance with Anders, we have reviewed the entire record in this case and
found no meritorious issues for appeal. We therefore affirm the revocation judgment. This
court requires that counsel inform Baker, in writing, of the right to petition the Supreme
Court of the United States for further review. If Baker 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 Baker. 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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