United States v. Kimberly McIntosh
691 F. App'x 762
| 4th Cir. | 2017Background
- McIntosh pled guilty to possession with intent to distribute heroin and was sentenced to 18 months’ imprisonment.
- At the time of the drug offense she was on supervised release for a 2012 racketeering-related conviction.
- She admitted violating supervised release and the district court revoked it, imposing a consecutive six-month revocation sentence.
- Appeal was consolidated for the original sentence and the supervised-release revocation sentence; counsel filed an Anders brief asserting no meritorious issues but questioning sentence reasonableness.
- McIntosh filed a pro se supplemental brief asserting sentence unreasonableness, ineffective assistance of counsel, and prosecutorial misconduct.
- The Fourth Circuit reviewed procedural and substantive reasonableness for the original sentence and applied a deferential review for the revocation sentence, and affirmed both judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonableness of original within-Guidelines sentence | McIntosh: sentence is unreasonable | Government: sentence is procedurally and substantively reasonable | Affirmed; within-Guidelines sentence presumed reasonable and presumption not rebutted |
| Reasonableness of supervised-release revocation sentence | McIntosh: six-month consecutive revocation term unreasonable | Government: revocation sentence reasonable and within statutory bounds | Affirmed; revocation review is deferential and sentence was reasonable |
| Ineffective assistance of counsel on direct appeal | McIntosh: counsel was ineffective | Government: record does not conclusively show ineffectiveness | Not considered on direct appeal; claim should be raised in §2255 if at all |
| Prosecutorial misconduct not raised below | McIntosh: prosecutor committed misconduct prejudicing her | Government: no misconduct or prejudice shown | Reviewed for plain error; claims fail — no prosecutorial misconduct or resulting prejudice shown |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (court must allow appointed counsel to withdraw if appeal is frivolous and file brief detailing issues)
- United States v. Lymas, 781 F.3d 106 (4th Cir. 2015) (standard for abuse-of-discretion review of original sentence)
- Gall v. United States, 552 U.S. 38 (sets procedural and substantive reasonableness framework for sentencing)
- United States v. Louthian, 756 F.3d 295 (within-Guidelines sentences carry a presumption of reasonableness)
- United States v. Padgett, 788 F.3d 370 (4th Cir. 2015) (revocation sentence review: outside statutory maximum or plainly unreasonable)
- United States v. Crudup, 461 F.3d 433 (revocation-sentence review follows similar procedural/substantive considerations, but with deference)
- United States v. Moulden, 478 F.3d 652 (4th Cir. 2007) (applies more deferential posture for revocation sentences)
- United States v. Faulls, 821 F.3d 502 (ineffective-assistance claims not addressed on direct appeal unless conclusively apparent on the record)
- United States v. Baptiste, 596 F.3d 214 (ineffective-assistance claims properly raised under §2255)
- United States v. Alerre, 430 F.3d 681 (plain-error review applies when objections not raised below)
- United States v. Caro, 597 F.3d 608 (to prevail on prosecutorial misconduct need both misconduct and prejudice)