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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4626
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM MICHAEL BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:04-cr-00003-MR-1)
Submitted:
March 19, 2012
Decided:
March 30, 2012
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard L. Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William
Michael
Brooks
was
found
guilty
of
eight
violations of the conditions of supervised release.
He appeals
the
supervised
district
release
and
courts
its
revocation
imposition
of
of
a
his
term
sentence
of
of
seven
months
imprisonment, followed by three years of supervised release and
fifty hours of community service.
Counsel
for
Brooks
submitted
brief
pursuant
to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but positing that Brooks
should not have received a sentence of imprisonment.
Brooks was
notified of his right to file a pro se supplemental brief, but
he has not done so.
The Government declined to file a response.
This
the
court
ordered
parties
to
submit
supplement
briefs
addressing the district courts imposition of community service
in lieu of reimbursement of fees for court-appointed counsel in
the
supervised
Brooks
suggests
release
that
revocation
the
proceeding.
imposition
of
Counsel
community
service
unreasonable because Brooks is physically unable to comply.
for
is
The
Government contends that the order is reasonable because the
district
court
had
authority
to
impose
community
service
requirement as a condition of supervised release.
In
supervised
reviewing
release,
sentence
this
court
2
imposed
takes
upon
a
revocation
more
of
deferential
appellate posture concerning issues of fact and the exercise of
discretion
than
sentences.
reasonableness
review
for
[G]uidelines
United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (internal quotation marks omitted).
We will affirm a
sentence imposed after revocation of supervised release if it is
not plainly unreasonable.
United States v. Thompson, 595 F.3d
544, 546 (4th Cir. 2010).
This court first determines whether the sentence is
reasonable.
procedurally
advisory
supervised
reasonable
policy
if
release
the
statement
revocation
district
range
and
court
the
sentence
is
considered
the
3553(a)
applicable to supervised release revocation.
factors
See Thompson, 595
F.3d at 547; 18 U.S.C. 3583(e) (West 2000 & Supp. 2010).
sentence
stated
is
a
substantively
proper
basis
reasonable
for
receive the sentence imposed.
if
concluding
the
the
district
court
defendant
should
Crudup, 461 F.3d at 440.
If the sentence is found to be unreasonable, however,
the court next determines whether it is plainly unreasonable.
For a sentence to be plainly unreasonable, it must run afoul of
clearly
settled
reviewing
community
the
law.
record,
service
unreasonable.
Thompson,
we
conclude
requirement
in
595
that
F.3d
at
the
this
548.
After
imposition
case
is
of
plainly
Accordingly, we vacate the judgment and remand
for resentencing.
3
The district court imposed a sentence of seven months
imprisonment and a three-year term of supervised release.
The
court noted that Brooks still had an outstanding requirement to
pay court-appointed attorneys fees from the original judgment.
It accordingly imposed fifty hours of community service in lieu
of reimbursement for court-appointed attorneys fees related to
the revocation proceedings.
The district court was required to impose a term of
imprisonment because Brooks failed to comply with required drug
testing.
18
U.S.C.
confirms
that
the
3583(g)(3).
district
court
review
properly
of
the
record
calculated
and
considered the Guidelines range and the 3553(a) factors, and
sufficiently explained its selected sentence.
The sentence of
seven months imprisonment coupled with the subsequent term of
three years supervised release is therefore not unreasonable,
let alone plainly so.
But the district court also imposed a requirement of
fifty
hours
of
community
service
imposition of attorneys fees.
as
substitute
for
the
This it had no discretion to do.
Although Brooks agreed in his plea agreement to pay his courtappointed attorneys fees related to the original judgment, the
plea
agreement
did
not
apply
to
the
subsequent
revocation
proceedings.
Brooks did not otherwise agree to pay attorneys
fees
to
related
the
revocation
4
proceedings
and
the
record
indicates
could
that
not
Brooks
have
is
held
indigent.
Brooks
The
accountable
related to the revocation proceedings. 1
district
for
court
thus
attorneys
fees
Because the imposition
of attorneys fees would have been impermissible, the court was
therefore not entitled to substitute community service for such
an order. 2
We
conclude
that
the
district
courts
community service is plainly unreasonable.
order
of
After a complete
review of the record in accordance with Anders, we find no other
meritorious issues.
Accordingly, we vacate the district courts
judgment and remand for resentencing.
We deny Brookss motion
for
further
appointment
of
new
counsel.
We
deny
counsels
motions to withdraw and to expedite a decision.
This
writing,
of
court
the
requires
right
to
that
petition
counsel
the
inform
Supreme
Brooks,
Court
of
in
the
Courts are authorized to require repayment of funds for
appointed counsel upon a finding that funds are available for
payment from or on behalf of a person furnished representation.
18 U.S.C. 3006A(f) (2006).
The district court must first
find, however, that identifiable assets are available to the
defendant. United States v. Moore, 666 F.3d 313, 322 (4th Cir.
2012).
The record here does not suggest that Brooks had funds
available to pay counsel; in fact, it strongly suggests the
opposite.
2
Although the district court had authority to generally
impose a condition of community service concurrent with the term
of supervised release under U.S.S.G. 5F1.3, it had no
discretion to impose community service as a substitute for
repayment of attorneys fees.
United States for further review.
If Brooks requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation.
Counsels motion must state that
a copy thereof was served on Brooks.
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.
