United States v. Jimmy Russell , 491 F. App'x 386 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4181
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY KEITH RUSSELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-01182-TLW-1)
Submitted: July 24, 2012 Decided: August 10, 2012
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. William E. Day, II, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Keith Russell was sentenced to forty-two months
of imprisonment, followed by three years of supervised release,
following his guilty plea to bank robbery, in violation of 18
U.S.C. § 2113(a) (2006), and Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a) (2006). His term of supervised release
began in March 2011.
In late October 2011, the probation officer filed a
Petition for Warrant or Summons for Offender Under Supervision
in the district court, alleging that Russell had violated two
conditions of his supervised release: (1) he had engaged in
illegal drug use; and (2) he had failed to pay the special
assessment fee and restitution. In describing Russell’s illegal
drug use, the probation officer alleged that Russell had failed
two drug tests, testing positive for marijuana and cocaine on
July 19, 2011, and testing positive for cocaine on October 3,
2011. After Russell failed another drug test on January 13,
2012, testing positive for cocaine, the probation officer
submitted a Petition for Action on Conditions of Pretrial
Release, arguing that Russell had violated the conditions of his
pretrial release and requesting that a warrant be issued for his
arrest.
At his revocation hearing, Russell admitted to the
violations, and also admitted that he failed the additional drug
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test on January 13, 2012. His Grade C violations combined with
his level I criminal history category produced a recommended
imprisonment range of three to nine months. U.S. Sentencing
Guidelines Manual, § 7B1.4, p.s. (2011). The district court
sentenced Russell to six months of imprisonment, followed by two
years of supervised release.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious grounds for appeal. Counsel asks the court,
however, to consider whether the district court imposed a
plainly unreasonable sentence. In response, Russell has filed a
pro se supplemental brief, raising several issues related to his
revocation hearing. Finding no reversible error, we affirm.
In reviewing a sentence imposed upon revocation of
supervised release, we “take[] a more ‘deferential appellate
posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433,
439 (4th Cir. 2006)). We will affirm a sentence imposed after
revocation of supervised release if it is not plainly
unreasonable. United States v. Thompson, 595 F.3d 544, 546 (4th
Cir. 2010). The first step in this review requires a
determination of whether the sentence is unreasonable. Crudup,
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461 F.3d at 438. Only if the sentence is procedurally or
substantively unreasonable does the inquiry proceed to the
second step of the analysis to determine whether the sentence is
plainly unreasonable. Id. at 438-39.
A supervised release revocation sentence is
procedurally reasonable if the district court has considered
Chapter Seven’s advisory policy statement range and the 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2011) factors applicable
to supervised release revocation. See 18 U.S.C.A. § 3583(e)
(West 2000 & Supp. 2011); Crudup, 461 F.3d at 438-40. “A court
need not be as detailed or specific when imposing a revocation
sentence as it must be when imposing a post-conviction sentence,
but it still must provide a statement of reasons for the
sentence imposed.” Thompson, 595 F.3d at 547 (internal
quotation marks omitted). A sentence is substantively
reasonable if the district court stated a proper basis for
concluding the defendant should receive the sentence imposed, up
to the statutory maximum. Crudup, 461 F.3d at 440.
Our review of the record reveals that the district
court correctly calculated and considered the advisory policy
statement range and properly considered the relevant § 3553(a)
factors. Because the district court stated a proper basis for
the sentence imposed, which was within the Chapter Seven
Guidelines and below the statutory maximum, see 18 U.S.C.A.
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§ 3583(e)(3) (West Supp. 2011), we conclude that the sentence
was both procedurally and substantively reasonable.
Addressing the arguments raised in Russell’s pro se
supplemental brief, he first claims that the district court
erroneously sentenced him based on uncharged violations of
supervised release. To the extent that Russell is alleging a
violation of Fed. R. Crim. P. 32.1(b)(2) (stating that defendant
is entitled to a full revocation hearing, including written
notice of the alleged violation), we review for plain error as
he failed to object below. United States v. Olano, 507 U.S.
725, 732 (1993). We conclude that Russell cannot establish that
plain error occurred. Russell’s advisory policy statement range
remained three to nine months based on the classification of his
violations as Grade C and his criminal history category of I,
regardless of whether the district court considered two or three *
drug test violations. Accordingly, we find that the alleged
error did not affect Russell’s substantial rights or “seriously
affect[] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted).
Finally, contrary to Russell’s arguments on appeal, we find that
the district court recognized its discretionary authority under
*
The record reveals the district court did not consider
Russell’s failed drug test of January 31, 2012.
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18 U.S.C.A. § 3583(d) (West Supp. 2011) to place Russell in a
substance abuse program as an alternative to incarceration.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client 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 the client. We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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