UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4639
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY DEJUAN BYNUM, a/k/a Steven Alexander Garrett,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:97-cr-00034-BR-1)
Submitted: January 18, 2011 Decided: January 26, 2011
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony DeJuan Bynum appeals the sixty-month sentence of
imprisonment imposed by the district court after finding that
Bynum violated his term of supervised release prohibiting
criminal conduct. Bynum pled guilty to conspiracy to possess
with intent to distribute cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2006), and possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
On appeal, Bynum argues that the sentence is plainly
unreasonable because the district court procedurally erred by
failing to consider and address all of the arguments that he
made in mitigation of his sentence.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a
sentence is plainly unreasonable, we first consider whether the
sentence imposed is unreasonable. Id. at 438. In making this
determination, we follow “the procedural and substantive
considerations that we employ in our review of original
sentences.” Id. at 438. In this inquiry, we take a more
deferential posture concerning issues of fact and the exercise
of discretion than reasonableness review of Guidelines
sentences. United States v. Moulden, 478 F.3d 652, 656 (4th
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Cir. 2007). Only if we find the sentence procedurally or
substantively unreasonable, must we decide whether it is
“plainly” so. Id. at 657.
While a district court must consider Chapter Seven’s
policy statements and the statutory provisions applicable to
revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006),
the district court need not robotically tick through every
subsection, and it has broad discretion to revoke the previous
sentence and impose a term of imprisonment up to the statutory
maximum provided by § 3583(e)(3). Moulden, 478 F.3d at 656-57
(4th Cir. 2007); Crudup, 461 F.3d at 439. Moreover, while a
district court must provide a statement of the reasons for the
sentence imposed, the court “need not be as detailed or specific
when imposing a revocation sentence as it must be when imposing
a post-conviction sentence.” United States v. Thompson, 595
F.3d 544, 547 (4th Cir. 2010).
We review a procedural sentencing objection raised for
the first time on appeal for plain error. United States v.
Lynn, 592 F.3d 572, 575 (4th Cir. 2010). “By drawing arguments
from § 3553 for a sentence different than the one ultimately
imposed, an aggrieved party sufficiently alerts the district
court of its responsibility to render an individualized
explanation addressing those arguments, and thus preserves its
claim.” Id. at 578. A party may do this through either its
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written papers or its in-court arguments prior to the district
court’s imposition of the sentence. Id. at 583-84.
Here, Bynum raised several arguments in the district
court, but did not request a specific sentence. Instead, Bynum
asked the court to consider his accomplishments while in prison,
and the difficulties he faced upon release “in fashioning a
sentence that’s sufficient but not greater than necessary to
achieve the purposes of sentencing on the supervised release
violation.” We find this statement insufficient to alert the
district court of its responsibility to render an individualized
explanation addressing Bynum’s arguments, and thus review his
claim for plain error.
To establish plain error, Bynum must show that: (1)
there was an error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). Even if Bynum makes this three-part
showing, we will reverse only if the error “seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” Lynn, 592 F.3d at 577. (internal quotation marks
omitted).
Our review of the record leads us to conclude that
Bynum has not established plain error. Given the deferential
appellate posture we take regarding the district court’s
exercise of discretion when imposing a revocation sentence, we
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conclude that the district court’s finding that Bynum offered no
arguments in mitigation of his sentence other than his remorse
was not plain error. Moreover, even assuming plain error, Bynum
has not shown that a more thorough explanation by the district
court specifically addressing his arguments would have affected
his sentence in light of its finding that the sixty-month
sentence was justified because Bynum received a substantial
reduction in his original sentence and his continued efforts in
distributing drugs posed a threat to society.
Accordingly, we affirm Bynum’s sentence. 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
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