United States v. Smith, 4th Cir. (2011)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-5059
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
SHERRI LYNN SMITH,
Defendant Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:04-cr-00219-HEH-1)
Submitted:
March 28, 2011
Decided:
April 14, 2011
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Robert J.

Wagner, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Richmond, Virginia, for Appellant.
Laura
Colombell Marshall, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherri Lynn Smith pled guilty to conspiracy to commit
bank fraud, in violation of 18 U.S.C. 1349 (2006), and was
sentenced in November 2004 to thirty-six months imprisonment,
followed by a five-year term of supervised release.
Smiths
prison term was subsequently reduced to twenty-seven months as a

result of her substantial assistance to the Government, see Fed.
R. Crim. P. 35(b).
2006.
Smith was released from imprisonment in June
After Smith failed to comply with the condition of her
supervised
within
release
that
seventy-two
release
was
she
report
to
her
hours
of
her
release,
and
she
was
sentenced
revoked
probation
Smiths
in
officer
supervised
March
2007
to
eighteen months imprisonment, followed by forty-two months of

supervised release.
July
2008
and
again
Smith was released from imprisonment in

began
serving
her
term
of
supervised
release.
In February 2010, Smiths probation officer petitioned
the
district
court
to
revoke
Smiths
supervised
release,
alleging in the petition that Smith had violated her supervised

release by testing positive for cocaine and being arrested and
charged
damage,
in
state
grand
court
larceny,
with
credit
and
credit
card
card
fraud,
intentional
larceny.
Smith
ultimately pled guilty in Virginia state court to two counts of

petit larceny.
At the revocation hearing in the district court,

2
Smith admitted these convictions and to testing positive for

cocaine.
and
The district court revoked Smiths supervised release
ultimately
sentenced
her
to
twenty-four
months
imprisonment, followed by an eighteen-month term of supervised

release.
On appeal, Smiths counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal, but questioning whether
Smiths revocation sentence is plainly unreasonable.
Smith has
filed a letter concerning her sentence that we construe as a pro

se supplemental brief.
A
district
We affirm.
court
has
broad
discretion
to
impose
sentence upon revoking a defendants supervised release.

States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
United
We will
affirm a sentence imposed after revocation of supervised release

if it is within the applicable statutory maximum and is not
plainly unreasonable.
437,
439-40
(4th
Cir.
United States v. Crudup, 461 F.3d 433,

2006).
In
determining
whether
revocation sentence is plainly unreasonable, we first assess the

sentence
for
unreasonableness,
follow[ing]
generally
the
procedural and substantive considerations that we employ in our

review
of
original
sentences.
Id.
at
438.
supervised
release revocation sentence is procedurally reasonable if the

district court considered the Sentencing Guidelines Chapter 7
advisory policy statements and the 18 U.S.C. 3553(a) (2006)
3
factors that it is permitted to consider in a supervised release

revocation case.
See 18 U.S.C.A. 3583(e) (West 2006 & Supp.
2010); Crudup, 461 F.3d at 439.
Although the court need not
explain the reasons for imposing a revocation sentence in as

much detail as when it imposes an original sentence, it still
must provide a statement of reasons for the sentence imposed.
Thompson, 595 F.3d at 547 (internal quotation marks omitted).
revocation sentence is substantively reasonable if the district

court stated a proper basis for concluding the defendant should
receive
the
sentence
Crudup,
461
F.3d
at
imposed,
440.
up
to
Only
the
if
statutory
sentence
maximum.
is
found
procedurally or substantively unreasonable will we then decide

whether
the
sentence
(emphasis omitted).
is
plainly
unreasonable.
revocation
at
439
A sentence is plainly unreasonable if it
is clearly or obviously unreasonable.

After
Id.
review
sentence
of
is
the
Id.
record,
not
we
plainly
conclude
that
unreasonable.
the
The
twenty-four month prison term and the eighteen-month term of

supervised release do not exceed the applicable maximums allowed
by
statute,
see
3583(e)(3), (h).
18
U.S.C.
3559(a)(2)
(2006);
18 U.S.C.A.
The district court considered the argument
of Smiths counsel and relevant 3553(a) factors, addressing on

the record Smiths history and characteristics, the nature and
circumstances
of
her
violative
4
behavior,
the
need
for
the
sentence to deter Smith, and Smiths breach of trust following

prior lenient treatment.
See 18 U.S.C. 3553(a)(1), (a)(2)(B)-
(C); USSG Ch. 7, Pt. A, introductory cmt. 3(b).
The district
court adequately explained its rationale for imposing sentence,

and the reasons relied upon are proper bases for the sentence
imposed.
Unfortunately,
erroneously-calculated
the
district
advisory
court
policy
considered
an
range; *
statement
accordingly, the revocation sentence is unreasonable.
However,
we
plainly
easily
conclude
unreasonable
that
because
the
Smiths
sentence
sentence
does
is
not
not
exceed
the
applicable statutory maximums, and the record does not contain

any basis upon which to conclude that the imposed sentence is
clearly or obviously unreasonable.
See Crudup, 461 F.3d at 439.
In accordance with Anders, we have reviewed Smiths

pro se supplemental brief and the remainder of the record and
have
found
therefore
meritorious
affirm
supervised
sentence
no
the
release
and
the
issues
district
and
remaining
courts
imposing
eighteen-month
the
term
order
for
revoking
twenty-four
of
appeal.
Smiths
month
supervised
We
prison
release.
The probation officer calculated an advisory policy

statement range of eighteen to twenty-four months imprisonment,
see U.S. Sentencing Guidelines Manual (USSG) (2009). Properly
calculated, the advisory policy statement range applicable to
Smith was seven to thirteen months imprisonment, see USSG
7B1.1(a)(3),
p.s.,
7B1.4(a),
p.s.;
Va.
Code
Ann.
18.2-11(a), 18.2-96(2) (2009).
This court requires that counsel inform Smith, in writing, of

the right to petition the Supreme Court of the United States for
further review.
If Smith requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then

counsel
may
move
representation.
in
this
court
for
leave
to
withdraw
from
Counsels motion must state that a copy thereof
was served on Smith.

We dispense with oral argument because the facts and
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

March 28, 2011

April 14, 2011

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Robert J.

Unpublished opinions are not binding precedent in this circuit.

prison term was subsequently reduced to twenty-seven months as a

Smith was released from imprisonment in June

After Smith failed to comply with the condition of her

eighteen months imprisonment, followed by forty-two months of

Smith was released from imprisonment in

alleging in the petition that Smith had violated her supervised

ultimately pled guilty in Virginia state court to two counts of

At the revocation hearing in the district court,

Smith admitted these convictions and to testing positive for

The district court revoked Smiths supervised release

imprisonment, followed by an eighteen-month term of supervised

On appeal, Smiths counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there

filed a letter concerning her sentence that we construe as a pro

sentence upon revoking a defendants supervised release.

affirm a sentence imposed after revocation of supervised release

United States v. Crudup, 461 F.3d 433,

revocation sentence is plainly unreasonable, we first assess the

procedural and substantive considerations that we employ in our

release revocation sentence is procedurally reasonable if the

factors that it is permitted to consider in a supervised release

See 18 U.S.C.A. 3583(e) (West 2006 & Supp.

2010); Crudup, 461 F.3d at 439.

Although the court need not

explain the reasons for imposing a revocation sentence in as

revocation sentence is substantively reasonable if the district

procedurally or substantively unreasonable will we then decide

A sentence is plainly unreasonable if it

is clearly or obviously unreasonable.

twenty-four month prison term and the eighteen-month term of

The district court considered the argument

of Smiths counsel and relevant 3553(a) factors, addressing on

sentence to deter Smith, and Smiths breach of trust following

See 18 U.S.C. 3553(a)(1), (a)(2)(B)-

(C); USSG Ch. 7, Pt. A, introductory cmt. 3(b).

court adequately explained its rationale for imposing sentence,

accordingly, the revocation sentence is unreasonable.

applicable statutory maximums, and the record does not contain

See Crudup, 461 F.3d at 439.

In accordance with Anders, we have reviewed Smiths

The probation officer calculated an advisory policy

This court requires that counsel inform Smith, in writing, of

If Smith requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

Counsels motion must state that a copy thereof

was served on Smith.

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