UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4481

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMARIO LADARL PEMBERTON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:12-cr-00055-LCB-1)

Submitted: December 10, 2019 Decided: January 2, 2020

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William Stimson Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC, Greensboro, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Demario Ladarl Pemberton appeals the 13-month sentence imposed upon

revocation of his supervised release. Counsel has filed a brief pursuant to Anders v.

California,

(1967), stating that there are no meritorious grounds for appeal

but questioning whether Pemberton’s revocation sentence is plainly unreasonable. In his

pro se supplemental brief, Pemberton challenges his original conviction for possession of

a firearm by a convicted felon, in violation of

(g)(1) (2012). The

Government has declined to file a response brief. We affirm.

“A district court has broad discretion when imposing a sentence upon revocation of

supervised release. We will affirm a revocation sentence if it is within the statutory

maximum and is not plainly unreasonable.” United States v. Webb,

(4th

Cir. 2013) (citation and internal quotation marks omitted). “[W]e first consider whether

the sentence imposed is procedurally or substantively unreasonable.”

Only when the

sentence is unreasonable will we determine whether the sentence “is plainly so.”

(internal quotation marks omitted).

“A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable

(a) [(2012)] factors.”

United States v. Slappy,

(4th Cir. 2017) (footnote omitted); see

(e) (2012) (listing relevant factors). “[A] revocation sentence is substantively

reasonable if the court sufficiently states a proper basis for its conclusion that the defendant

should receive the sentence imposed.” Slappy,

(alteration and internal

2 quotation marks omitted). “A sentence within the policy statement range is presumed

reasonable.” United States v. Padgett,

(4th Cir. 2015) (internal quotation

marks omitted).

In fashioning an appropriate sentence, “the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the seriousness

of the underlying violation and the criminal history of the violator.” U.S. Sentencing

Guidelines Manual ch. 7, pt. A(3)(b) (2018); see Webb,

. “A court need

not be as detailed or specific when imposing a revocation sentence as it must be when

imposing a post-conviction sentence, but it still must provide a statement of reasons for the

sentence imposed.” United States v. Thompson,

(4th Cir. 2010) (internal

quotation marks omitted). The court “must address the parties’ nonfrivolous arguments in

favor of a particular sentence, and if the court rejects those arguments, it must explain why

in a detailed-enough manner that [we] can meaningfully consider the procedural

reasonableness of the revocation sentence.” Slappy,

. An explanation is

sufficient if we can determine “that the sentencing court considered the applicable

sentencing factors with regard to the particular defendant before it and also considered any

potentially meritorious arguments raised by the parties with regard to sentencing.” United

States v. Gibbs,

(4th Cir. 2018) (alterations and internal quotation marks

omitted). In appropriate circumstances, “[t]he context surrounding a district court’s

explanation may imbue it with enough content for us to evaluate both whether the court

considered the § 3553(a) factors and whether it did so properly.” United States v. Montes-

Pineda,

(4th Cir. 2006).

3 We find no unreasonableness, plain or otherwise, in Pemberton’s sentence, which

was within the accurately calculated policy statement range. The district court consistently

emphasized Pemberton’s breach of trust, remarking that he made little progress during his

few months on supervised release, only complied with the conditions of supervised release

when he felt like it, had a defensive and negative attitude toward the probation officer and

supervision in general, was unable to maintain steady employment, and committed new

criminal conduct. The court also did not unduly rely on impermissible factors to support

the revocation sentence. Although the court did not explicitly address Pemberton’s

arguments in mitigation during its formal sentencing explanation, the court’s comments

throughout the hearing made it clear that it had considered the arguments but did not find

them persuasive.

In his pro se supplemental brief, Pemberton contends that his § 922(g)(1) conviction

is invalid after Rehaif v. United States,

(2019) (holding that, in

§ 922(g)(1) prosecution, “the Government . . . must show that the defendant knew he

possessed a firearm and also that he knew he had the relevant status when he possessed

it”). This argument is not properly before us. See United States v. Sanchez,

(4th Cir. 2018) (“A supervised release revocation hearing is not a proper forum for

testing the validity of an underlying sentence or conviction.”).

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious issues for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Pemberton, in writing, of the right to petition the

Supreme Court of the United States for further review. If Pemberton requests that a petition

4 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 Pemberton.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

5