United States of America v. Edwin Donta Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWIN DONTA SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:15-cr-00299-TDS-1)
Submitted: August 11, 2016 Decided: September 8, 2016
Before GREGORY, Chief Judge, and SHEDD and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lewis C. Allen, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. John Mcrae Alsup, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 5 --

2
PER CURIAM:
Edwin Donta Smith appeals from the district court’s
judgment revoking his supervised release and sentencing him to
24 months’ imprisonment. Smith’s 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 raising as
an issue for review whether Smith’s sentence is plainly
unreasonable. Smith has filed a pro se supplemental brief in
which he questions whether the district court erred in
calculating his advisory policy statement range. The Government
declined to file a brief. We affirm.
This court “will not disturb a district court’s revocation
sentence unless it falls outside the statutory maximum or is
otherwise ‘plainly unreasonable.’” United States v. Padgett,
788 F.3d 370, 373 (4th Cir.) (quoting United States v. Crudup,
461 F.3d 433, 437 (4th Cir. 2006)), cert. denied, 136 S. Ct. 494
(2015). “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 such a determination, “we strike
a more deferential appellate posture than we do when reviewing
original sentences.” Padgett, 788 F.3d at 373 (internal
quotation marks omitted). “Nonetheless, the same procedural and
substantive considerations that guide our review of original

-- 2 of 5 --

3
sentences inform our review of revocation sentences as well.”
Id. (internal quotation marks and alteration omitted).
A supervised release revocation sentence is procedurally
reasonable if the district court has considered the Sentencing
Guidelines’ Chapter Seven advisory policy statement range and
the 18 U.S.C. § 3553(a) (2012) factors it is permitted to
consider in a supervised release revocation case, see 18 U.S.C.
§ 3583(e) (2012); Crudup, 461 F.3d at 439-40, and has adequately
explained the sentence chosen, although it need not explain the
sentence in as much detail as when imposing an original
sentence. Thompson, 595 F.3d at 547. A revocation sentence is
substantively reasonable if the district court states a proper
basis for concluding the defendant should receive the sentence
imposed, up to the statutory maximum. Crudup, 461 F.3d at 440.
Only if we find a sentence unreasonable must we decide whether
it is “plainly” so. United States v. Moulden, 478 F.3d 652, 657
(4th Cir. 2007). A sentence is plainly unreasonable if it is
clearly or obviously unreasonable. Id.; Crudup, 461 F.3d at
439.
Smith’s 24-month prison sentence does not exceed the
applicable statutory maximum. See 18 U.S.C. §§ 924(a)(2),
3559(a)(3), 3583(e)(3) (2012). The district court properly
calculated Smith’s advisory policy statement range at 21 to 24
months’ imprisonment based on the applicable statutory maximum,

-- 3 of 5 --

4
Smith’s Category VI criminal history, and his Grade B violation
of supervised release resulting from his possession of marijuana
on multiple occasions while on release. See United States v.
Wynn, 786 F.3d 339, 341-44 (4th Cir.), cert. denied, 136 S. Ct.
276 (2015); U.S. Sentencing Guidelines Manual §§ 7B1.1(a)(2),
(b), 7B1.4(a), (b)(3)(A), p.s. (2015). The court also
considered that range as advisory and considered argument from
counsel and allocution from Smith. In rejecting Smith’s request
for GPS monitoring and home detention, the district court
considered the nature and circumstances of Smith’s violative
behavior, his history and characteristics, the need for the
revocation sentence to protect the public, and the need to
sanction Smith’s breach of trust, see 18 U.S.C. § 3353(a)(1),
(2)(C); USSG ch. 7, pt. A, introductory cmt. 3(b) (“[A]t
revocation the [district] court should sanction primarily the
defendant’s breach of trust.”), and explained that these factors
supported the imposition of a sentence at the top of the policy
statement range.
We conclude that the district court adequately explained
its rationale for imposing the 24-month prison sentence and
relied on proper considerations in doing so. Based on the broad
discretion that a district court has to revoke a term of
supervised release and impose a prison term up to and including
the statutory maximum, Smith’s revocation sentence is not

-- 4 of 5 --

5
unreasonable. Therefore, we conclude that his sentence is not
plainly unreasonable.
In accordance with Anders, we also have reviewed the
remainder of the record and Smith’s pro se supplemental brief
and have found no meritorious issues for appeal. We therefore
affirm the district court’s judgment. 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 in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Smith.
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

-- 5 of 5 --