United States v. Toni Cremeans

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 6, 2018
• Docket: 18-4079
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4079

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONI LYNN CREMEANS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:15-cr-00211-1)

Submitted: June 15, 2018 Decided: July 6, 2018

Before MOTZ, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sebastian M. Joy, JOY LAW OFFICES, Catlettsburg, Kentucky, for Appellant. Joseph Franklin Adams, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Toni Lynn Cremeans appeals the eight-month sentence imposed upon revocation

of her supervised release. Cremeans’ counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there are no potentially meritorious issues

for appeal but questioning whether the sentence imposed by the district court was plainly

substantively unreasonable. Cremeans also has filed a pro se supplemental brief, raising

a variety of challenges to the revocation judgment. 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). “We

will affirm a revocation sentence if it is within the statutory maximum and is not plainly

unreasonable.” 1 Id. (internal quotation marks omitted). “We first must determine

whether the sentence is procedurally or substantively unreasonable,” evaluating the same

general considerations employed in review of original sentences. United States v. Slappy,

872 F.3d 202, 207 (4th Cir. 2017). Only if we find a sentence unreasonable must we

determine whether it is “plainly” so. United States v. Thompson, 595 F.3d 544, 547 (4th

Cir. 2010).

1 Insofar as counsel questions whether revocation sentences, like original sentences, should be reviewed for reasonableness, that argument is foreclosed by binding precedent. See United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006) (holding that “plainly unreasonable” standard applies to review of revocation sentences); see also United States v. Bullard, 645 F.3d 237, 246 (4th Cir. 2011) (“[A] panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court.” (internal quotation marks omitted)).

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) [(2012)]

factors.” Slappy, 872 F.3d at 207 (footnote and internal quotation marks omitted). “[A]

revocation sentence is substantively reasonable if the court sufficiently states a proper

basis for its conclusion that the defendant should receive the sentence imposed.” Id.

(alteration and internal quotation marks omitted). We presume that a sentence within the

applicable policy statement range is substantively reasonable. United States v. Padgett,

788 F.3d 370, 373 (4th Cir. 2015).

Based on our review of the record, we conclude that Cremeans has failed to rebut

the presumption of reasonableness accorded her sentence. The district court properly

calculated Cremeans’ policy statement range of 4 to 10 months’ imprisonment, see U.S.

Sentencing Guidelines Manual § 7B1.1(a)(2), p.s. (2016); United States v. Wynn, 786

F.3d 339, 342-43 (4th Cir. 2015), and sentenced her in the middle of that range. The

court explained the basis for its sentence, grounding its calculus in the specific facts of

Cremeans’ case and the applicable § 3553(a) factors, including the nature and

circumstances of the violations, Cremeans’ history and characteristics, and the need to

deter future criminal conduct. See 18 U.S.C. § 3583(e) (listing § 3553(a) factors

applicable to revocation context). The court reasonably expressed dissatisfaction with

Cremeans’ failure to adhere to even basic requirements of her supervised release term,

almost from its inception. See Webb, 738 F.3d at 641 (recognizing that revocation

sentence “should sanction primarily the defendant’s breach of trust”). The court also 3 aptly expressed concern for Cremeans’ pattern of “spiraling” into more severe violations.

In view of the totality of the circumstances, we conclude that the sentence imposed by the

district court was reasonable.

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

have found no meritorious issues for appeal. 2 We therefore affirm the district court’s

judgment. This court requires that counsel inform Cremeans, in writing, of the right to

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

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

2 We have thoroughly reviewed the claims in Cremeans’ pro se supplemental brief and conclude that they do not entitle her to relief.