United States v. McCullers

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4497


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


TIMOTHY GEROME MCCULLERS, a/k/a Tim,

Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:94-cr-00097-F-6)


Submitted: March 31, 2011

Decided: April 4, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ronald Cohen, Wilmington, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Timothy

Gerome

McCullers appeals from his

fifty-nine-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 McCullers’ sentence is 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 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]

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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 McCullers, appropriately treating the

Sentencing Guidelines as advisory, properly calculating and

considering the applicable Guidelines range, and weighing the

relevant § 3553(a) factors. The court gave sound reasoning for

imposing the above Guidelines sentence and we conclude the

sentence was reasonable.

See Gall

552 U.S. at 51 (court may not

presume a sentence outside the Guidelines range is

unreasonable). The court’s sentence may be presumed reasonable

by this court.

Moreover, McCullers 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. McCullers 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.

McCullers filed a pro se supplemental brief

maintaining that his sentence was excessive and that he did not

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admit to drug distribution as a violation of his supervised

release. In accordance with Anders, we have reviewed these

issues and the record in this case and have found no meritorious

issues for appeal. We therefore affirm McCullers’ conviction

and sentence. This court requires that counsel inform

McCullers, in writing, of the right to petition the Supreme

Court of the United States for further review. If McCullers

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 McCullers.

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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