United States v. Christopher Kirk Gray

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 25, 2018
• Docket: 18-4037
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4037

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER KIRK GRAY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:09-cr-00029-JLK-RSB-3)

Submitted: June 21, 2018 Decided: June 25, 2018

Before DIAZ and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Wynn Andrew Harding, Harrisonburg, Virginia, for Appellant. Ronald Andrew Bassford, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Christopher Kirk Gray appeals from the district court’s judgment revoking his

supervised release and sentencing him to 18 months in prison. Gray’s attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states that there

are no meritorious issues for appeal, but asks that we review the reasonableness of Gray’s

sentence. Although advised of his right to file a pro se supplemental brief, Gray has not

done so. The Government has declined to file a response brief. We affirm.

“A district court has broad, though not unlimited, discretion in fashioning a

sentence upon revocation of a defendant’s term of supervised release.” United States v.

Slappy, 872 F.3d 202, 206 (4th Cir. 2017). Accordingly, when we review a revocation

sentence, we “take[] 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) (internal quotation marks omitted).

“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)

(quoting United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006)).

To consider whether a revocation sentence is plainly unreasonable, we first must

determine whether the sentence is procedurally or substantively unreasonable. See

Slappy, 872 F.3d 207. 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.” Crudup, 461 F.3d at 438-39. Thus, a revocation sentence

2 is procedurally reasonable if the district court adequately explains the chosen sentence

after considering the Sentencing Guidelines’ Chapter Seven policy statements and the

applicable statutory sentencing factors. See Thompson, 595 F.3d at 546-47. 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. Crudup, 461 F.3d at

440. “Only if we find a revocation sentence unreasonable do we consider whether it is

‘plainly’ so, relying on the definition of ‘plain’ used in our ‘plain’ error analysis[,]” i.e.,

“clear” or “obvious.” Slappy, 872 F.3d at 208 (internal quotation marks and alterations

omitted).

Applying these standards, we readily conclude that Gray’s below-policy statement

range sentence is neither procedurally nor substantively unreasonable, and therefore is

not plainly unreasonable. The district court did not plainly err when it adopted the

probation officer’s policy statement range, as Gray’s use of methamphetamine warranted

a Grade B violation under the Guidelines. See United States v. Clark, 30 F.3d 23, 26 (4th

Cir. 1994) (concluding that, where the district court finds intentional or culpable use of a

controlled substance, a finding of possession necessarily follows). The district court

heard the parties’ arguments and allowed Gray to allocute at the revocation hearing, and

it explained the selected sentence in terms of the revocation-relevant § 3553(a) factors.

Although counsel raises the substantive reasonableness of Gray’s sentence as a possible

issue for review, counsel correctly concedes that Gray’s sentence, which was below the

policy statement range, is presumptively reasonable. We find no reason to question the

presumptive reasonableness we accord Gray’s sentence.

3 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 Gray, in writing, of the right to

petition the Supreme Court of the United States for further review. If Gray 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 Gray. 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