UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELRAY JENNETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:02-cr-00060-RBS-1)
Submitted: April 10, 2009 Decided: May 4, 2009
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Dana J. Boente, Acting United States Attorney,
Richard D. Cooke, William D. Muhr, Assistant United States
Attorneys, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Delray Jennette appeals a thirty-five month sentence
imposed upon revocation of his term of supervised release.
Jennette argues on appeal that the district court erred in
determining his revocation sentence by considering factors not
permitted by 18 U.S.C. § 3583(e) (2006). We affirm.
We will not disturb a sentence imposed after
revocation of supervised release unless it is “‘plainly
unreasonable’ with regard to those § 3553(a) factors applicable
to supervised release revocation sentences.” United States v.
Crudup, 461 F.3d 433, 437 (4th Cir. 2006). We must initially
determine whether the revocation sentence is unreasonable, a
process that includes procedural and substantive components.
See id. at 437-38. A revocation sentence is procedurally
reasonable if the district court took into account the Chapter 7
policy statements and the applicable factors in 18 U.S.C.
§ 3553(a) (2006). Crudup, 461 F.3d at 440. The sentence is
substantively reasonable if the court stated an appropriate
basis for imposing a sentence within the statutory maximum. See
id. Only if we determine that the sentence was unreasonable do
we proceed to the question of whether the sentence was plainly
unreasonable. See id. at 438.
While a district court “ultimately has broad
discretion to revoke its previous sentence and impose a term of
2
imprisonment up to the statutory maximum,” Crudup, 461 F.3d at
439 (internal quotation marks omitted), the court must consider
the Chapter Seven policy statements as well as the statutory
requirements and factors applicable to revocation sentences
under 18 U.S.C. §§ 3553(a) and 3583(e). Chapter Seven of the
Guidelines provides, “at revocation, 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.” USSG
Ch. 7, Pt. A(3)(b). Section 3583 approves consideration of a
majority of the factors listed in § 3553(a), omitting only two.
18 U.S.C. § 3583(e). Included among the omitted factors is the
need “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense.” 18 U.S.C. § 3553(a)(2)(A).
The district court’s observations regarding the
seriousness of Jennette’s offense and need to provide just
punishment were relevant to other required considerations,
including “the nature and circumstances of the offense and the
history and characteristics of the defendant,” adequately
deterring criminal conduct, and protecting the public from
further crimes of the defendant. 18 U.S.C. § 3553(a)(1),
(a)(2)(B), (a)(2)(C). The court emphasized Jennette’s apparent
refusal to abide by the terms of his supervised release, a
3
factor relevant to Chapter Seven’s policy that a revocation
sentence should focus on the breach of the court’s trust.
Moreover, the district court expressly considered the factors in
§ 3553(a) that are applicable to revocation sentences.
Therefore, Jennette’s sentence is not unreasonable, much less
plainly so.
Accordingly, we affirm the judgment of the district
court. 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
4