UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
1

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

2

U.S. Sentencing Guidelines Manual (2004).

2

PER CURIAM:

Hue Davies Anderson appeals the district court’s order

revoking his probation and sentencing him to nine months of

imprisonment. 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 Anderson’s 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. The

Government declined to file a brief. We affirm.

This court reviews a sentence imposed after revocation of

probation to determine if it is plainly unreasonable. United

States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). 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 defendant’s probation and impose a term of
3

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 court’s

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 Court’s 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 Anderson’s 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 Anderson’s conviction and sentence, but remand to

the district court for correction of the written judgment to

specify Anderson’s sentence of imprisonment is nine months, as

orally pronounced at the revocation hearing. We deny counsel’s

motion to withdraw. 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
4

withdraw from representation. Counsel’s 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