United States v. Anderson, 4th Cir. (2008)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 08-4168
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
HUE DAVIES ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:04-cr-00472-NCT-1)
Submitted:
September 11, 2008
Decided:
September 15, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

North Carolina, for Appellant. Harry L. Hobgood, Angela Hewlett
Miller, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hue Davies Anderson appeals the district courts order
revoking
his
imprisonment.
probation
and
sentencing
him
to
nine
months
of
On appeal, counsel filed an Anders1 brief, in which
he states there are no meritorious issues for appeal, but questions

whether the district court erred in imposing a sentence greater
than Andersons original Guidelines2 range, without notifying the
parties pursuant to Fed. R. Crim. P. 32(h) of its intent to impose
an upward variant sentence.
Anderson was advised of his right to
file a pro se supplemental brief, but has not filed a brief.

Government declined to file a brief.
The
We affirm.
This court reviews a sentence imposed after revocation of

probation to determine if it is plainly unreasonable.
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007).
United
We first
assess the sentence for reasonableness, taking a more deferential

appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for guidelines sentence.
Id. (quoting United States v. Crudup, 461 F.3d 433, 438 (4th Cir.
2006)).
Although the district court must consider the Chapter 7
policy statements and the requirements of 18 U.S.C.A. 3553(a),

3565 (West 2000 & Supp. 2008), the sentencing court retains broad
discretion to revoke a defendants probation and impose a term of
Anders v. California, 386 U.S. 738 (1967).
U.S. Sentencing Guidelines Manual (2004).

2
imprisonment up to the statutory maximum.
Moulden, 478 F.3d at
656-57.
Anderson does not challenge the procedural aspects of his
sentence, or assert that it exceeds either the Guidelines range or
the statutory maximum. Rather, he argues that the district courts
imposition of a sentence in excess of the zero to six month
Guidelines range that applied at his original sentencing amounts to
an upward variance for which the court did not give advance notice.
Anderson acknowledges that his argument is foreclosed by the
Supreme Courts recent decision in Irizarry v. United States, 128
S. Ct. 2198 (2008), but he wishes to preserve the argument for
further appellate review.
Our review of the record leads us to
conclude that Andersons sentence is not unreasonable.

In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
We
therefore affirm Andersons conviction and sentence, but remand to

the district court for correction of the written judgment to
specify Andersons sentence of imprisonment is nine months, as
orally pronounced at the revocation hearing.
motion to withdraw.
We deny counsels
This court requires that counsel inform
Anderson, in writing, of the right to petition the Supreme Court of

the United States for further review.
If Anderson 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.
Counsels motion must state that a
copy thereof was served on Anderson.

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

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

September 11, 2008

September 15, 2008

Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior

Affirmed and remanded by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

Unpublished opinions are not binding precedent in this circuit.

On appeal, counsel filed an Anders1 brief, in which

he states there are no meritorious issues for appeal, but questions

Anderson was advised of his right to

file a pro se supplemental brief, but has not filed a brief.

This court reviews a sentence imposed after revocation of

assess the sentence for reasonableness, taking a more deferential

Although the district court must consider the Chapter 7

policy statements and the requirements of 18 U.S.C.A. 3553(a),

Anders v. California, 386 U.S. 738 (1967).

U.S. Sentencing Guidelines Manual (2004).

imprisonment up to the statutory maximum.

Moulden, 478 F.3d at

Our review of the record leads us to

conclude that Andersons sentence is not unreasonable.

therefore affirm Andersons conviction and sentence, but remand to

This court requires that counsel inform

Anderson, in writing, of the right to petition the Supreme Court of

If Anderson requests that a

petition be filed, but counsel believes that such a petition would

withdraw from representation.

Counsels motion must state that a

copy thereof was served on Anderson.

AFFIRMED AND REMANDED

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