United States of America v. Tyronne Green

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5105
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONNE GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:08-cr-00107-RGD-JEB-1)
Submitted: June 28, 2012 Decided: August 2, 2012
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas II, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Brian J. Samuels, Assistant U. S. Attorney,
Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tyronne Green appeals the district court’s order
revoking his probation and imposing a ten-month sentence. We
affirm.
In the Petition on Probation, Green was charged with
testing positive for cocaine on three occasions and with failing
to apply a tax refund to court-ordered restitution, as required
by a special condition of probation. At his July 25, 2011,
revocation hearing, Green admitted committing the charged
violations. The district court continued the hearing until
October 24, 2011. The court informed Green that it would
dismiss the matter if Green were able to remain drug-free until
the hearing resumed. Green tested positive for cocaine in
September 2011, and he admitted to this additional violation at
the October hearing.
According to a probation violation worksheet, which
was before the district court,* Green committed both Grade B and
Grade C violations. See U.S. Sentencing Guidelines Manual
* Green complains on appeal that the worksheet was not
before the district court. We note that it was Green’s
responsibility to include the worksheet in the Joint Appendix.
See Fed. R. App. P. 30(a). Further, Green does not dispute the
Government’s statement in its brief that the worksheet was
submitted to the district court. Nor does he contend that the
Government’s brief misrepresents information contained in the
worksheet.

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§ 7B1.1(a), p.s. (2011). Using the more serious grade
violation, see USSG § 7B1.1(b), p.s., and taking into account
Green’s criminal history category of I, his recommended range of
imprisonment was 4-10 months. See USSG § 7B1.4(a), p.s.
The district court revoked probation and imposed a
ten-month sentence. In sentencing Green, the court stated that
not only had Green failed to pay court-ordered restitution, but
he had “reverted to the use of cocaine and . . . been in
possession of it.”
We apply the same standard of review for probation
revocation as we do for supervised release revocation. United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). A
revocation sentence should be affirmed if it is within the
applicable statutory maximum and not plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 439-40
(4th Cir. 2006). We first consider whether the sentence is
unreasonable. Id. at 438. “This initial inquiry takes a more
deferential appellate posture concerning issues of fact and the
exercise of discretion than reasonableness review for guideline
sentences.” Moulden, 478 F.3d at 656. We will affirm if the
sentence is not unreasonable. Crudup, 461 F.3d at 439. Only if
a sentence is found procedurally or substantively unreasonable
will we “decide whether the sentence is plainly
unreasonable.” Id.

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In reviewing for reasonableness, we “follow[]
generally the procedural and substantive considerations that
[are] employ[ed] in [the] review of original sentences, . . .
with some necessary modifications to take into account the
unique nature of . . . revocation sentences.” Id. at 438-39. A
sentence imposed upon revocation of probation is procedurally
reasonable if the district court considered the Chapter Seven
policy statements and the statutory factors applicable to
revocation sentences under 18 U.S.C. § 3553(a) (2006). Moulden,
478 F.3d at 656. The court need not robotically tick through
every subsection of § 3553(a) when pronouncing sentence. Id. at
657. A revocation sentence is substantively reasonable if the
district court stated a proper basis for concluding that the
defendant should receive the selected sentence, up to the
statutory maximum. Crudup, 461 F.3d at 440. Ultimately, the
court has broad discretion to revoke probation and to impose a
sentence up to that maximum. Moulden, 478 F.3d at 656.
With these principles in mind, we conclude that the
ten-month sentence is not unreasonable. Green was sentenced
within the recommended policy statement range of four to ten
months. Further, the district court’s explanation of the
sentence reveals that the court took the § 3553(a) factors into
consideration when determining the sentence.

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

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