United States v. Barbee

Court Case Details
Court Case Opinion




No. 10-4569


Plaintiff – Appellee,


KILBY GRAYSON BARBEE, a/k/a Grayson Barbee, a/k/a Graton
Barbee, a/k/a Kilby C. Barbee,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:06-cr-00017-F-1)

Submitted: March 10, 2011

Decided: March 21, 2011

Before WILKINSON, NIEMEYER, and WYNN, 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Affirmed by unpublished per curiam opinion.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.
George E.B. Holding, United States Attorney, Jennifer P. May-
Parker, Felice McConnell Corpening, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.


Kilby Grayson Barbee appeals from his

twenty-four-month sentence imposed upon revocation of his

supervised release. On appeal, he asserts that his sentence is

procedurally and substantively 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 this 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.

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 decisionmaking
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]

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).


Here, the district court considered Barbee’s arguments

for a sentence combining incarceration, home confinement, and

drug treatment, and rejected them. The court explicitly

considered the Guidelines range as well as many of the statutory

factors that it was permitted to consider when arriving at a

sentence. In this regard, the court mentioned Barbee’s

continued drug use even after drug treatment, the need to

protect society from the consequences of Barbee’s drug use, and

the need for Barbee to receive further treatment. As such, the

district court adequately discussed the reasons for the chosen

sentence, and thus, Barbee’s sentence was procedurally


Turning to the substantive reasonableness of Barbee’s

sentence, the district court’s decision that another period of

non-incarcerated (or minimally incarcerated) drug treatment was

not a sufficient sanction for Barbee’s multiple violations of

supervised release was not an abuse of discretion. In addition,

the length of the sentence and the court’s recommendation

increased the likelihood that Barbee would receive the requested

and recommended intensive drug treatment while in prison. See

Crudup, 461 F.3d at 440 (upholding imposition of maximum

sentence for revocation of supervised release based, in part, on

need for substance abuse treatment and recommendation that

Crudup receive intensive substance abuse treatment



incarcerated). Finally, Barbee failed to show in district court

or on appeal that there was a permissible way of structuring his

sentence that would ensure both a substantial sentence and

continued intensive drug treatment.

Moreover, Barbee 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. Barbee 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.

Accordingly, we affirm Barbee’s sentence. We deny

Barbee’s motion to file a pro se reply brief. 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.



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