UNITED STATES v. MCMILLAN (2020)

Marcus Neal McMillan appeals the district court’s judgment revoking his supervised release and sentencing him to 18 months’ imprisonment plus an additional 30 days for contempt of court. McMillan’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no meritorious grounds for appeal but questioning the reasonableness of McMillan’s revocation sentence. McMillan was notified of his right to file a pro se supplemental brief but has not done so. The Government has declined to file a brief. 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.” United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (internal quotation marks omitted). “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). Only if the sentence is procedurally or substantively unreasonable must we determine whether it is plainly so. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007).

A revocation sentence is procedurally reasonable when the district court considers the policy statements in Chapter Seven of the Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a) (2018) factors and adequately explains the sentence imposed. Slappy, 872 F.3d at 207; see 18 U.S.C. § 3583(e) (2018) (listing relevant factors). 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. Slappy, 872 F.3d at 206. “A sentence within the policy statement range is presumed reasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (internal quotation marks omitted).

In fashioning an appropriate sentence, “the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.” U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b) (2015). “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). The court “must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if the court rejects those arguments, it must explain why in a detailed-enough manner that [we] can meaningfully consider the procedural reasonableness of the revocation sentence imposed.” Slappy, 872 F.3d at 208. An explanation is sufficient if we can determine “that the sentencing court considered the applicable sentencing factors with regard to the particular defendant before it and also considered any potentially meritorious arguments raised by the parties with regard to sentencing.” United States v. Gibbs, 897 F.3d 199, 204 (4th Cir. 2018) (alterations and internal quotation marks omitted).

We find no unreasonableness, plain or otherwise, in McMillan’s sentence. The district court properly calculated McMillan’s policy statement range and sentenced him at the bottom of that range. While the court provided only a limited explanation for the sentence it imposed, its statements evidence its reasoned basis for rejecting McMillan’s arguments for a sentence that would include no active term of imprisonment. The court’s responses to McMillan’s arguments in mitigation—noting his positive drug tests and his blaming others for his failure to cooperatively participate in substance abuse and mental health treatment programs—reveal its proper emphasis on McMillan’s breach of the court’s trust and enable us to “meaningfully consider the procedural reasonableness of the revocation sentence imposed.” Slappy, 872 F.3d at 208. Finally, we conclude that McMillan fails to rebut the presumption of substantive reasonableness accorded his sentence. See Padgett, 788 F.3d at 373.

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 McMillan, in writing, of the right to petition the Supreme Court of the United States for further review. If McMillan 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 McMillan. 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

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.