United States v. Jeffrey Sims, II ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY BERNARD SIMS, II,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:14-cr-00222-CCE-1)
Submitted: January 15, 2019 Decided: February 5, 2019
Before NIEMEYER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant. Stephen Thomas Inman, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Sims, II, appeals the district court’s order revoking his supervised release
and sentencing him to 11 months in prison. Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), claiming that the sentence is plainly
unreasonable but stating that there are no meritorious issues for appeal. Although Sims
was advised of his right to file a pro se brief, he has not filed such a brief. We affirm.
“We will affirm a revocation sentence if it is within the statutory maximum and is
not plainly unreasonable.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013)
(internal quotation marks omitted). Sims’ sentence does not exceed the applicable
statutory maximum. The remaining question is whether the sentence is plainly
unreasonable.
“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 follow generally the
procedural and substantive considerations that we employ in our review of original
sentences, . . . with some necessary modifications to take into account the unique nature
of supervised release revocation sentences.” United States v. Slappy, 872 F.3d 202, 207
(4th Cir. 2017) (internal quotation marks omitted). Only if we find a sentence to be
procedurally or substantively unreasonable will we consider whether it is “plainly” so.
Id. at 208.
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the . . . Chapter Seven policy statements
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and the applicable 18 U.S.C. § 3553(a) [2012] factors.” Id. at 207. “[A] revocation
sentence is substantively reasonable if the court sufficiently state[s] a proper basis for its
conclusion that the defendant should receive the sentence imposed.” Id. (internal
quotation marks omitted). “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.” United States v.
Thompson, 595 F.3d at 547 (internal quotation marks omitted).
We conclude that Sims’ sentence is procedurally and substantively reasonable.
The court correctly identified his policy statement range, considered relevant statutory
factors, and gave sufficient reasons for the selected sentence. Among other things, Sims
had repeatedly proven to be unable to abide by the terms of supervision, as evidenced by
his ongoing use of marijuana. The court was concerned about Sims’ breach of the court’s
trust and the nature of the release violations.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm. This court requires
that counsel inform Sims, in writing, of the right to petition the Supreme Court of the
United States for further review. If Sims 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 of the
motion was served on Sims.
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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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