United States v. Commander, 4th Cir. (2007)
Uploaded by
Scribd Government DocsUnited States v. Commander, 4th Cir. (2007)
Uploaded by
Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4512
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAM COMMANDER, JR.,
Defendant - Appellant.
No. 07-4513
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAM COMMANDER, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Columbia.
Cameron McGowan Currie, District
Judge. (3:02-cr-00947; 3:06-cr-00747)
Submitted:
October 24, 2007
Decided:
November 1, 2007
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant.
Marshall Prince, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
On December 6, 2002, Sam Commander, Jr. pled guilty to
conspiring to obtain stolen vehicles in violation of 18 U.S.C.
371 (2000).
Commander was sentenced to five years of probation.
Commander was subsequently charged with conspiracy to commit bank
fraud, in violation of 18 U.S.C.A. 1344 (2000) and 1349 (West
2000 and Supp. 2007) for his participation in a check kiting
scheme. Pursuant to a plea agreement, Commander pled guilty to the
sole count in the indictment on November 20, 2006.
office
then
issued
petition
for
warrant
or
The probation
summons
for
Commander, alleging that his conviction for conspiracy to commit
bank fraud violated the terms of his probation.
On April 19, 2007, the district court held a sentencing
hearing for Commanders new conviction and a probation revocation
hearing.
Prior to the hearing, the probation office prepared a
presentence investigation report and a probation violation report.
In Commanders presentence report, the probation officer calculated
an
advisory
months.
guidelines
range
of
twenty-seven
to
thirty-three
In the probation violation report, a different probation
officer determined that, pursuant to USSG 7B1.1, conspiracy to
commit bank fraud constituted a Grade B violation.
then
recommended
sentence
of
twelve
imprisonment based on USSG 7B1.4(a).
- 3 -
to
The officer
eighteen
months
At Commanders hearing, the district court, after hearing
no
objection
calculations,
from
either
adopted
the
counsel
regarding
presentence
report
the
officers
and
sentenced
Commander to twenty-seven months imprisonment for his conviction
of conspiring to commit bank fraud.
The district court then
revoked Commanders probation and sentenced him to a consecutive
term
of
twelve
months
imprisonment,
in
conformity
with
the
probation officers calculation in the probation violation report.
Commander timely noted his appeal to both his conviction for
conspiring to commit bank fraud and his revocation of probation.
Commanders
counsel
has
filed
brief
pursuant
to
Anders
California, 386 U.S. 738 (1967), and questions whether:
v.
(1) the
district court complied with Fed. R. Crim. P. 11 in accepting
Commanders
guilty
plea;
(2)
the
district
court
abused
its
discretion in revoking Commanders probation; and (3) the sentence
imposed by the district court was reasonable.*
We affirm the
judgment of the district court.
Under Fed. R. Crim. P. 11(b), a district court must
address
the
following:
defendant
the
nature
in
of
open
the
court
and
charge;
inform
any
him
mandatory
of
the
minimum
sentence and the maximum possible sentence; the applicability of
the sentencing guidelines; the defendants right to an attorney;
Commander was informed of his right to file
supplemental brief. He has elected not to do so.
- 4 -
pro
se
his right to plead not guilty; his right to be tried by a jury with
the assistance of counsel; his right to confront and cross-examine
witnesses; and his right against self-incrimination.
The court
must also advise the defendant that a guilty plea waives any
further trial and that his answers at the proceeding may be used
against him in a prosecution for perjury. Under Rule 11(b)(2), the
court must address the defendant to determine that his plea is
voluntary. The court must require disclosure of any plea agreement
under Rule 11(c)(2), and determine whether a factual basis exists
for the plea under Rule 11(b)(3).
Our review of the record reveals
that the district court conducted a thorough inquiry pursuant to
Rule 11.
Commander
next
questions
whether
the
district
court
abused its discretion in revoking his supervised release.
decision to revoke a defendants supervised release is reviewed for
abuse of discretion.
(4th Cir. 1995).
United States v. Davis, 53 F.3d 638, 642-43
A district court need only find a violation by a
preponderance of the evidence to revoke a defendants supervised
release.
Here,
18 U.S.C.A. 3583(e)(3) (West 2000 and Supp. 2007).
Commander
knowingly
and
intelligently
pled
guilty
to
conspiring to commit bank fraud; Commander committed his new
offense while on supervised release.
court
did
not
abuse
its
discretion
supervised release.
- 5 -
Accordingly, the district
in
revoking
Commanders
Finally, Commander questions whether his sentence is
reasonable.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court must engage in a multi-step process at sentencing.
After
calculating
the
correct
advisory
guidelines
range,
the
sentencing court must consider the guidelines range, any relevant
factors set forth in the guidelines, and the factors in 18 U.S.C.A.
3553(a) (West 2000 and Supp. 2007); then the court may impose
sentence.
2005).
United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
On appeal, this court reviews a sentence to determine
whether it is reasonable. United States v. Moreland, 437 F.3d 424,
433 (4th Cir. 2006).
A post-Booker sentence may be unreasonable
for procedural or substantive reasons.
However, a sentence that
falls within a properly calculated advisory guidelines range is
presumed to be reasonable.
Rita v. United States, 127 S. Ct. 2456,
2462 (2007).
On the basis of the record presented to this court, we
cannot conclude that Commanders sentence of twenty-seven months,
at the low end of his guidelines as calculated by the district
court,
was
unreasonable.
The
district
court
specifically
considered the advisory nature of the guidelines, the factors in
3553(a), Commanders cooperation in the bank fraud case, and
Commanders declining health.
The court also considered defense
counsels argument that the two sentences should run concurrently;
- 6 -
however, the court determined that consecutive sentences at the low
end of Commanders guideline ranges was the appropriate outcome.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
therefore
affirm
the
district
courts
judgment.
This
We
court
requires that counsel inform Commander, in writing, of the right to
petition the Supreme Court of the United States for further review.
If
Commander
requests
that
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
Commander.
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
- 7 -
