UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4463

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHNNY LEE SIMMONS, a/k/a JJ,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. Patrick Michael Duffy, District

Judge. (2:02-cr-00289-PMD-7)

Submitted: August 21, 2008 Decided: August 25, 2008

Before WILLIAMS, Chief Judge, and KING and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Robert Haley, Assistant Federal Public Defender, Charleston,

South Carolina, for Appellant. Michael Rhett DeHart, Assistant

United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Johnny Lee Simmons appeals the modification of supervised

release imposed after he violated the terms of his supervised

release. Simmons’ counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that, in his view, there

are no meritorious issues for appeal. Counsel suggests, however,

that the district court abused its discretion in sentencing Simmons

to serve three months in a community corrections center. Simmons

was advised of his right to file a pro se supplemental brief, but

he has not done so. The Government declined to file a brief.

Finding no error, we affirm.

This court will affirm a sentence imposed after

revocation or modification of supervised release if it is within

the applicable statutory maximum and is not plainly unreasonable.

United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006),

cert. denied, 127 S. Ct. 1813 (2007). This court explained that it

must first assess the sentence for reasonableness, “follow[ing]

generally the procedural and substantive considerations that we

employ in our review of original sentences, . . . with some

necessary modifications to take into account the unique nature of

supervised release revocation sentences.” Id. at 438-39; see

United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In

applying the ‘plainly unreasonable’ standard, we first determine,

using the instructions given in Gall[v. United States, 128 S. Ct.
*“[F]or purposes of determining whether an unreasonable

sentence is plainly unreasonable, plain is synonymous with clear

or, equivalently, obvious.” Crudup, 461 F.3d at 439 (internal

quotation marks and citation omitted).

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586, 597 (2007)], whether a sentence is ‘unreasonable.’”). Should

this court conclude a sentence is reasonable, it should affirm the

sentence. Crudup, 461 F.3d at 439. Only if a sentence is found

procedurally or substantively unreasonable will this court “decide

whether the sentence is plainly unreasonable.”* Id. (emphasis in

original); see Finley, 531 F.3d at 294. Although the district

court must consider the Chapter 7 policy statements and the

requirements of 18 U.S.C.A. §§ 3553(a), 3583 (West 2000 & Supp.

2008), “the [district] court ultimately has broad discretion to

revoke its previous sentence and impose a term of imprisonment up

to the statutory maximum.” Crudup, 461 F.3d at 439 (internal

quotation marks and citations omitted). 

Simmons’ counsel questions whether the three-month

sentence to be served in a community corrections center is

unreasonable. Simmons does not challenge the procedural aspects of

his sentence. In reviewing the substantive reasonableness of a

sentence for abuse of discretion, 

the court will, of course, take into account

the totality of the circumstances, including

the extent of any variance from the Guidelines

range . . . . [I]f the sentence is outside the

Guidelines range, the court may not apply a

presumption of unreasonableness. It may

consider the extent of the deviation, but must

give due deference to the district court’s
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decision that the § 3553(a) factors, on a

whole, justify the extent of the variance.

Gall, 128 S. Ct. at 597. 

Here, the district court thoroughly stated its reasons

for imposing the three month placement. We conclude that the

district court’s imposition of the sentence is reasonable. Based

on the conclusion that the sentence is reasonable, “it necessarily

follows that [Simmons’] sentence is not plainly unreasonable.”

Crudup, 461 F.3d at 440; see Finley, 531 F.3d at 297.

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm the district court’s modification of the terms of

Simmons’ supervised release. This court requires that counsel

inform Simmons, in writing, of the right to petition the Supreme

Court of the United States for further review. If Simmons 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. Counsel’s motion must state that

a copy thereof was served on Simmons. 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