United States of America v. Robert Lester Kirby, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4290
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LESTER KIRBY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. W. Earl Britt,
Senior District Judge. (7:02-cr-00111-BR-1)
Submitted: November 20, 2014 Decided: November 24, 2014
Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Lester Kirby was sentenced to thirty-seven
months in prison following the revocation of his supervised
release. He appeals, arguing that his sentence is plainly
unreasonable because it is greater than necessary to serve the
purposes of supervised release. We affirm.
The district court has broad discretion in selecting
the sentence to impose upon revoking a defendant’s supervised
release. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010). This court will affirm a sentence imposed after
revocation of supervised release if it is within the governing
statutory range and not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 437–40 (4th Cir. 2006). “When reviewing
whether a revocation sentence is plainly unreasonable, we must
first determine whether it is unreasonable at all.” Thompson,
595 F.3d at 546.
A sentence is procedurally reasonable if the district
court has considered the policy statements contained in Chapter
Seven of the Sentencing Guidelines and the applicable 18 U.S.C.
§ 3553(a) (2012) factors, Crudup, 461 F.3d at 440, and has
adequately explained the sentence chosen. Thompson, 595 F.3d at
547. A sentence is substantively reasonable if the district
court states “a proper basis” for its imposition of a sentence
up to the statutory maximum. Crudup, 461 F.3d at 440. If,

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after considering the above, we decide that the sentence is not
unreasonable, we will affirm. Id. at 439. Only if this court
finds the sentence unreasonable must it decide whether it is
“plainly” so. Id. at 439.
With these principles in mind, we have reviewed the
record and the parties’ briefs and conclude that Kirby’s within-
Guidelines sentence of thirty-seven months is not plainly
unreasonable. Accordingly, we affirm the revocation judgment.
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

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