United States v. Kedric McLean , 446 F. App'x 627 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5329
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEDRIC RENARD MCLEAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:01-cr-00151-BO-1)
Submitted: September 13, 2011 Decided: September 15, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kedric Renard McLean appeals from his
thirty-seven-month sentence imposed upon revocation of his
supervised release. Counsel has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious issues for appeal, but raising the
issue of whether McLean’s sentence is plainly unreasonable. We
affirm.
A sentence imposed after revocation of supervised
release should be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In
making this determination, we first consider whether the
sentence is unreasonable. Id. at 438. “This initial inquiry
takes a more deferential appellate posture concerning issues of
fact and the exercise of discretion than reasonableness review
for guidelines sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007). In making its review, we “follow
generally the procedural and substantive considerations that
[are] employ[ed] in [the] review of original sentences, . . .
with some necessary modifications to take into account the
unique nature of supervised release revocation sentences.”
Crudup, 461 F.3d at 438-39.
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A sentence imposed upon revocation of release is
procedurally reasonable if the district court considered the
Chapter Seven policy statements and the 18 U.S.C. § 3553(a)
(2006) factors that it is permitted to consider. See 18 U.S.C.
§ 3583(e) (2006); Crudup, 461 F.3d at 438-40. A sentence imposed
upon revocation of release is substantively reasonable if the
district court stated a proper basis for concluding that the
defendant should receive the sentence imposed, up to the
statutory maximum. Crudup, 461 F.3d at 440. We affirm if the
sentence is not unreasonable. Id. at 439. Only if a sentence
is found procedurally or substantively unreasonable will we
“decide whether the sentence is plainly unreasonable.” Id.“[T]he court ultimately has broad discretion to revoke its
previous sentence and impose a term of imprisonment up to the
statutory maximum.” Id.When imposing sentence, the district court must
provide individualized reasoning:
The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decision making
authority. . . . Where the defendant . . . presents
nonfrivolous reasons for imposing a different sentence
than that set forth in the advisory Guidelines, a
district judge should address the party’s arguments
and explain why he has rejected those arguments.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The
Carter rationale applies to revocation hearings; however, “[a]
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court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a
post-conviction sentence.” United States v. Thompson, 595 F.3d
544, 547 (4th Cir. 2010).
The district court followed the necessary procedural
steps in sentencing McLean, appropriately treating the
Sentencing Guidelines as advisory, properly calculating and
considering the applicable Guidelines range, and presumably
weighing the relevant § 3553(a) factors. The court actively
questioned McLean and the Government witnesses and credited the
testimony that it heard. The district court’s sentence may be
presumed reasonable by this court.
Moreover, McLean faces a very heavy burden in
challenging his sentence. Even if he could show that his
sentence was unreasonable, he would still need to show that it
was plainly unreasonable. A sentence is “plainly unreasonable”
if it “run[s] afoul of clearly settled law.” Thompson, 595 F.3d
at 548. McLean has not cited clearly settled law that was
violated by the district court’s sentence, and the record does
not reveal any such obvious errors.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm McLean’s conviction and sentence. This
court requires that counsel inform McLean, in writing, of the
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right to petition the Supreme Court of the United States for
further review. If McLean 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 McLean. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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