United States v. Donovan Swift

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 3, 2023
• Docket: 23-4343
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4343

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONOVAN SWIFT,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, Chief District Judge. (1:21-cr-00029-TSK-MJA-1)

Submitted: October 31, 2023 Decided: November 3, 2023

Before HARRIS and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Elizabeth B. Gross, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. Sarah Wagner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

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PER CURIAM:

Donovan Swift appeals the district court’s judgment revoking his supervised release

and sentencing him to 12 months of imprisonment, followed by 24 months of supervised

release. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious grounds for appeal but questioning whether Swift’s

sentence is plainly unreasonable. Although informed of his right to file a pro se

supplemental brief, Swift has not done so. We affirm.

“A district court has broad discretion when imposing a sentence upon revocation of

supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). Thus, we

will “affirm a revocation sentence so long as it is within the prescribed statutory range and

is not plainly unreasonable.” United States v. Coston, 964 F.3d 289, 296 (4th Cir. 2020)

(internal quotation marks omitted). When reviewing whether a revocation sentence is

plainly unreasonable, we first determine “whether the sentence is unreasonable at all.” Id.

(internal quotation marks omitted).

“A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) factors,” id. at 297

(internal quotation marks omitted), and the explanation indicates “that the court considered

any potentially meritorious arguments raised by the parties,” United States v. Patterson,

957 F.3d 426, 436-37 (4th Cir. 2020) (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

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sentence imposed.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal

quotation marks omitted). “A revocation sentence is substantively reasonable if, in light

of the totality of the circumstances, the court states an appropriate basis for concluding that

the defendant should receive the sentence imposed.” Coston, 964 F.3d at 297 (internal

quotation marks omitted). A revocation sentence falling within the recommended policy

statement range is presumed substantively reasonable. See United States v. Gibbs, 897

F.3d 199, 204 (4th Cir. 2018).

We conclude that Swift’s revocation sentence is both procedurally and substantively

reasonable. When imposing its sentence, the district court correctly calculated the policy

statement range, considered the relevant statutory factors, imposed a sentence within the

statutory maximum, gave sufficiently detailed reasons for its decision, and addressed

Swift’s arguments for a lesser sentence. We also conclude that Swift fails to rebut the

presumption of substantive reasonableness accorded to his within-policy-statement-range

sentence. See id.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Swift, in writing, of the right to petition the

Supreme Court of the United States for further review. If Swift 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 Swift.

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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