United States v. Kevin Moore

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 15, 2022
• Docket: 21-4474
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4474

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN CLARK MOORE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00163-WO-1)

Submitted: February 28, 2022 Decided: March 15, 2022

Before AGEE and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North Carolina, for Appellant. Ashley E. Waid, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kevin Clark Moore appeals the district court’s judgment revoking his supervised

release and sentencing him to 24 months’ imprisonment followed by 12 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 the imposition of an additional term of supervised release that included a special

condition requiring inpatient treatment was proper. The Government has declined to file a

brief. Although notified of his right to file a pro se supplemental brief, Moore has not done

so. We affirm.

“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)

(internal quotation marks omitted). Moore’s term of supervised release does not exceed

the applicable statutory maximum. “When reviewing whether a revocation sentence is

plainly unreasonable, we must first determine whether it is unreasonable at all.” United

States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). “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.” United States v. Slappy, 872

F.3d 202, 207 (4th Cir. 2017) (cleaned up). Only if a sentence is either procedurally or

substantively unreasonable is a determination then made as to whether the sentence is

plainly unreasonable. United States v. Moulden, 478 F.3d 652, 656-57 (4th Cir. 2007).

2 “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.” Slappy,

872 F.3d at 207 (footnote omitted); see 18 U.S.C. § 3583(e). A revocation sentence is

substantively reasonable if the court states a proper basis for concluding that the defendant

should receive the sentence imposed, up to the statutory maximum. United States v.

Crudup, 461 F.3d 433, 440 (4th Cir. 2006). “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 sentence imposed.”

Thompson, 595 F.3d at 547 (internal quotation marks omitted).

We conclude that the additional term of supervised release and the special condition

are procedurally and substantively reasonable. The district court imposed the statutory

maximum term of supervised release, considered the relevant statutory factors, and gave

sufficiently detailed reasons for its decision. Specifically, the court recounted Moore’s

continued use of illegal controlled substances and his history of criminal activity while

using controlled substances. Further, the imposition of the inpatient treatment condition of

supervised release is reasonable because the court considered Moore’s history of drug use,

his criminal conduct while using drugs, and his desire to enroll in an inpatient treatment

program, along with Moore’s agreement that he wanted to participate in the treatment

program, and a sentencing court is permitted to consider rehabilitation in imposing

conditions of supervised release and can order participation in treatment programs, see 18

U.S.C. §§ 3583(c)-(d), 3563(b)(9); cf. Tapia v. United States, 564 U.S. 319, 322 (2011)

3 (holding that district court may not lengthen term of incarceration to render defendant

eligible for drug treatment program); United States v. Bennett, 698 F.3d 194, 198-99 (4th

Cir. 2012) (applying Tapia in context of supervised release revocation).

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

found no meritorious grounds for appeal. Accordingly, we affirm the district court’s

revocation judgment. This court requires that counsel inform Moore, in writing, of the

right to petition the Supreme Court of the United States for further review. If Moore

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 Moore.

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