United States v. Stephanie Alkire

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 19, 2023
• Docket: 22-4441
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4441

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEPHANIE DIANE ALKIRE,

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-00031-TSK-MJA-1)

Submitted: January 17, 2023 Decided: January 19, 2023

Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Katy J. Cimino, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. Brandon Scott Flower, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

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PER CURIAM:

Stephanie Diane Alkire appeals the district court’s judgment imposing an 18-month

sentence upon revocation of Alkire’s term of supervised release. Counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no

meritorious grounds for appeal but discussing whether the district court imposed a plainly

unreasonable sentence. Alkire did not file a pro se supplemental brief despite receiving

notice of her right to do so, and the Government declined to file a response brief. Finding

no error, we affirm.

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

supervised release. United States v. Coston, 964 F.3d 289, 296 (4th Cir. 2020), cert.

denied, 141 S. Ct. 1252 (2021). “We affirm a revocation sentence so long as it is within

the prescribed statutory range and is not plainly unreasonable.” Id. (internal quotation

marks omitted). “To consider whether a revocation sentence is plainly unreasonable, we

first must determine whether the sentence is procedurally or substantively unreasonable.”

United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017).

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

explains the chosen sentence after considering the . . . Chapter Seven policy statements and

the applicable 18 U.S.C. § 3553(a) factors,” id. (cleaned up), and “explain[s] why any

sentence outside of the [policy statement] range better serves the relevant sentencing

[factors],” id. at 209 (cleaned up); see 18 U.S.C. § 3583(e) (specifying the § 3553(a) factors

relevant to supervised release revocation). “[A] revocation sentence is substantively

reasonable if the court sufficiently states a proper basis for its conclusion that the defendant

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should receive the sentence imposed[,]” up to the statutory maximum. Slappy, 872 F.3d at

207 (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. Id. at 208.

We find that the district court committed no error when it imposed the 18-month

sentence. To the contrary, the district court listened to the parties’ arguments and allowed

Alkire to allocute at length before imposing sentence. The court then responded to the

parties’ arguments and explained the selected sentence in terms of the revocation-relevant

sentencing factors. Although counsel raises the reasonableness of Alkire’s sentence as a

possible issue for our consideration, counsel correctly concedes that Alkire’s sentence,

which was below the statutory maximum, is reasonable. The district court also thoroughly

explained its rationale for imposing Alkire’s sentence, which included Alkire’s repeated

failure to comply with the terms of her supervised release and—given the futility of

Alkire’s previous supervised release—the court’s decision to forego imposing a new

supervised release term. We therefore hold that Alkire’s sentence is not unreasonable. See

Coston, 964 F.3d at 298 (“Given the district court’s care in explaining [defendant’s]

sentence, and especially considering that court’s historic inability to prevent [defendant]

from repeatedly violating supervised release conditions, we hold that his sentence is not

unreasonable.”).

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 Alkire, in writing, of her right to petition the

Supreme Court of the United States for further review. If Alkire requests that a petition be

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filed, but counsel believes that such a petition would be frivolous, then counsel may move

this court for leave to withdraw from representation. Counsel’s motion must state that a

copy thereof was served on Alkire. 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 in the decisional process.

AFFIRMED