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    The United States Court of Appeals for the Fourth Circuit affirmed Cecil Dean White's 24-month sentence for violating the terms of his supervised release. The court found that the district court properly considered the sentencing factors and policy statements, and provided individualized reasoning for the sentence. While White claimed mitigating circumstances, the district court rejected his excuses and emphasized his repeated violations and failure to take responsibility. As the sentence was within the guidelines range and statutory maximum, and White did not show it was plainly unreasonable or affected his substantial rights, the appeals court upheld the district court's ruling.

    Original Description:

    Filed: 2010-10-22 Precedential Status: Non-Precedential Docket: 09-5187

    Original Title

    United States v. White, 4th Cir. (2010)

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    The United States Court of Appeals for the Fourth Circuit affirmed Cecil Dean White's 24-month sentence for violating the terms of his supervised release. The court found that the district court properly considered the sentencing factors and policy statements, and provided individualized reasoning for the sentence. While White claimed mitigating circumstances, the district court rejected his excuses and emphasized his repeated violations and failure to take responsibility. As the sentence was within the guidelines range and statutory maximum, and White did not show it was plainly unreasonable or affected his substantial rights, the appeals court upheld the district court's ruling.

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    Public Domain
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    Unpublished

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    The United States Court of Appeals for the Fourth Circuit affirmed Cecil Dean White's 24-month sentence for violating the terms of his supervised release. The court found that the district court properly considered the sentencing factors and policy statements, and provided individualized reasoning for the sentence. While White claimed mitigating circumstances, the district court rejected his excuses and emphasized his repeated violations and failure to take responsibility. As the sentence was within the guidelines range and statutory maximum, and White did not show it was plainly unreasonable or affected his substantial rights, the appeals court upheld the district court's ruling.

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    of 6

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 09-5187

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    CECIL DEAN WHITE,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.
    James C. Dever III,
    District Judge. (2:06-cr-00023-D-1)

    Submitted:

    August 31, 2010

    Decided:

    October 22, 2010

    Before MOTZ, DAVIS, and KEENAN, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,


    Assistant Federal Public Defender, James E. Todd, Jr., Research
    and Writing Attorney, Raleigh, North Carolina, for Appellant.
    George E. B. Holding, United States Attorney, Anne M. Hayes,
    Jennifer P. May-Parker, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Cecil Dean White appeals from his twenty-four month
    sentence imposed pursuant to the revocation of his supervised
    release.

    On

    appeal,

    White

    asserts

    that

    his

    sentence

    is

    procedurally and substantively plainly unreasonable because the


    district court failed to consider the mitigating circumstances,
    gave

    excessive

    violations,

    weight

    and

    to

    failed

    the

    to

    provide

    support for a major variance.


    A
    release

    sentence

    should

    statutory

    be

    maximum

    after

    affirmed
    is

    severity

    sufficiently

    of

    compelling

    if

    it

    not

    revocation
    is

    plainly

    within

    of

    supervised

    the

    applicable

    unreasonable.

    United

    States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006).


    making

    this

    determination,

    sentence is unreasonable.

    the

    We affirm.

    imposed

    and

    exaggerated

    we

    first

    Id. at 438.

    consider

    whether

    In
    the

    This initial inquiry

    takes a more deferential appellate posture concerning issues of


    fact and the exercise of discretion than reasonableness review
    for guideline sentences.
    652, 656 (4th Cir. 2007).
    generally

    the

    procedural

    United States v. Moulden, 478 F.3d


    In making our review, we follow
    and

    substantive

    considerations

    that

    [are] employ[ed] in [the] review of original sentences, . . .


    with

    some

    unique

    necessary

    nature

    of

    modifications

    supervised

    to

    release

    Crudup, 461 F.3d at 438-39.


    2

    take

    into

    revocation

    account

    the

    sentences.

    sentence

    procedurally
    Chapter

    imposed

    reasonable

    Seven

    policy

    if

    upon

    the

    revocation

    district

    statements

    and

    of

    court

    the

    18

    considered

    U.S.C.

    (2006) factors that it is permitted to consider.


    3583(e); Crudup, 461 F.3d at 438-40.
    revocation

    of

    release

    is

    release

    is
    the

    3553(a)

    See 18 U.S.C.

    A sentence imposed upon

    substantively

    reasonable

    if

    the

    district court stated a proper basis for concluding that the


    defendant

    should

    receive

    sentence

    sentence

    is

    is

    sentence

    imposed,

    Crudup, 461 F.3d at 440.

    statutory maximum.
    the

    the

    not

    found

    unreasonable.

    procedurally

    Id.

    or

    up

    to

    the

    We will affirm if

    at

    439.

    substantively

    Only

    if

    unreasonable

    will we decide whether the sentence is plainly unreasonable.


    Id.

    [T]he court ultimately has broad discretion to revoke its

    previous sentence and impose a term of imprisonment up to the


    statutory maximum.
    When

    Id.

    imposing

    sentence,

    the

    district

    court

    must

    See United States v. Carter,

    provide individualized reasoning.


    564 F.3d 325, 328 (4th Cir. 2009).

    The Carter rationale applies

    to

    revocation

    hearings;

    however,

    court

    need

    not

    be

    as

    detailed or specific when imposing a revocation sentence as it


    must

    be

    when

    imposing

    post-conviction

    sentence.

    United

    States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).


    Because

    White

    did

    not

    request

    sentence

    from the one imposed, review is for plain error.


    3

    different
    See United

    States

    v.

    Lynn,

    592

    F.3d

    572,

    580

    (4th

    Cir.

    2010).

    To

    establish plain error, [White] must show that an error occurred,


    that

    the

    error

    was

    plain,

    substantial rights.
    249

    (4th

    Cir.

    correction

    that

    the

    error

    affected

    his

    United States v. Muhammad, 478 F.3d 247,

    2007).

    of

    and

    the

    Even
    error

    if

    White

    remains

    makes

    within

    this
    [the

    discretion, which [the court] should not exercise

    showing,
    courts]

    . . . unless

    the error seriously affect[s] the fairness, integrity or public


    reputation of judicial proceedings.
    marks

    and

    citation

    omitted).

    In

    the

    Id. (internal quotation


    sentencing

    context,

    an

    error affects substantial rights if the defendant can show that


    the sentence imposed was longer than that to which he would
    otherwise be subject.

    United States v. Angle, 254 F.3d 514,

    518 (4th Cir. 2001).


    We conclude that White failed to make the requisite
    showings.

    His excuses for his admitted release violations fail

    to outweigh the fact that he repeatedly violated the terms of


    his supervised release.

    The district court considered Whites

    excuses and rejected them.

    The court explicitly considered the

    Guidelines range (six to twelve months) as well as many of the


    statutory

    factors

    that

    arriving at a sentence.
    Whites

    continuing

    it

    was

    permitted

    to

    consider

    when

    In this regard, the court mentioned

    criminal

    conduct,

    the

    leniency

    of

    the

    probation officer and the court in the past, the need to deter
    4

    future

    violations,

    while

    on

    supervised release, and his failure to take responsibility.

    In

    addition,

    the

    Whites

    court

    unsatisfactory

    recommended

    that

    conduct

    White

    receive

    substance

    abuse treatment.
    Moreover,
    claims he raises.

    White

    faces

    very

    heavy

    burden

    on

    the

    Even if he could show that his sentence was

    unreasonable, he would still need to show that it was plainly


    unreasonable.

    sentence

    is

    plainly

    White

    addition,

    has

    flatly

    because

    his

    if

    it

    Thompson, 595 F.3d at

    run[s] afoul of clearly settled law.


    549.

    unreasonable

    failed

    to

    make

    such

    sentence

    is

    reviewed

    a
    for

    showing.
    plain

    In

    error,

    White must also show that there is a reasonable probability that


    the claimed irregularity in sentencing affected his substantial
    rights and that any error affected the fairness and integrity of
    the judicial system.

    Whites assertions of error illustrate

    essentially a disagreement with the district courts conclusions


    that his behavior constituted serious breaches of his release
    conditions.

    Even

    assuming

    rational

    minds

    could

    differ

    on

    whether the district courts conclusions were exaggerated, White


    cannot show that his substantial rights were affected or that
    the

    sentencing

    error

    was

    so

    egregious

    that

    it

    called

    into

    question the fairness of the sentencing system.


    Accordingly, we affirm Whites sentence.

    We dispense

    with oral argument because the facts and legal contentions are
    5

    adequately

    presented

    in

    the

    materials

    before

    the

    court

    and

    argument would not aid the decisional process.


    AFFIRMED

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