UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH JOSEPH JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:91-cr-00529-DCN-2)
Submitted: March 21, 2011 Decided: April 6, 2011
Before NIEMEYER and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Jimmie Ewing, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Joseph Johnson appeals his sixty-three month
sentence imposed on revocation of supervised release. He argues
that there was an insufficient factual basis for revocation and
that the district court’s sentence was plainly unreasonable
because the court failed to consider the U.S. Sentencing
Guidelines Manual Chapter 7 policy statements in formulating his
within-Guidelines sentence. We affirm.
I. Factual Basis
This court reviews the district court’s decision to
revoke a defendant’s supervised release for an abuse of
discretion. United States v. Pregent, 190 F.3d 279, 282
(4th Cir. 1999). The district court need only find a violation
of a condition of supervised release by a preponderance of the
evidence. 18 U.S.C. § 3583(e)(3) (2006); Johnson v. United
States, 529 U.S. 694, 700 (2000). This court reviews factual
determinations informing the conclusion that a violation
occurred for clear error. United States v. Carothers, 337 F.3d
1017, 1019 (8th Cir. 2003).
Johnson notes that his supervised release violation
was based on his recent federal conviction, and that his appeal
of that conviction was pending before this court at the time he
appealed his supervised release revocation and sentence. He
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asserts that if the conviction is vacated, the basis for
revocation will no longer be valid. We recently affirmed
Johnson’s underlying conviction and sentence. United States v.
Johnson, No. 09-4280, 2011 WL 288522 (4th Cir. Jan. 31, 2011)
(unpublished). Accordingly, there is no question that an
adequate factual basis supported the district court’s revocation
decision.
II. Sentence
A sentence imposed after revocation of supervised
release should be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). We
first review the sentence for reasonableness, “follow[ing]
generally the procedural and substantive considerations that
[are] employ[ed] in [the] review of original sentences, . . .
with some necessary modifications to take into account the
unique nature of supervised release revocation sentences.” Id.
at 438-39; see United States v. Finley, 531 F.3d 288, 294
(4th Cir. 2008) (“In applying the ‘plainly unreasonable’
standard, we first determine, using the instructions given in
Gall [v. United States, 552 U.S. 38 (2007)], whether a sentence
is ‘unreasonable.’”).
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A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall, 552 U.S. at 51. This
review requires consideration of both the procedural and
substantive reasonableness of a sentence. Id.; see United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After
determining whether the district court properly calculated the
defendant’s advisory guideline range, we must decide whether the
district court considered the § 3553(a) factors, analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Lynn, 592 F.3d at 575-76; see United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the
sentence is free of significant procedural error, the appellate
court reviews the substantive reasonableness of the sentence.
Lynn, 592 F.3d at 575; United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
Although the district court must consider the Chapter
7 policy statements and the requirements of § 3553(a) and
§ 3583, “the sentencing court retains broad discretion to revoke
a defendant’s probation [or supervised release] and impose a
term of imprisonment up to the statutory maximum.” United
States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (citing
Crudup, 461 F.3d at 439).
Johnson concedes that because he did not request a
different sentence or object to his sentence, our review is for
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plain error. See Lynn, 592 F.3d at 577 (applying plain error
review to a claim that sentence was unreasonable where the
defendant did not request a different sentence); Fed. R. Crim.
P. 52(b). To establish plain error, Johnson must show that an
error occurred, that the error was plain, and that the error
affected his substantial rights. United States v. Muhammad, 478
F.3d 247, 249 (4th Cir. 2007). Even if Johnson satisfies these
requirements, “correction of the error remains within [the
court’s] discretion, which [the court] should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
We have reviewed the record and conclude that Johnson
has not satisfied this strict standard. He claims that the
district court did not consider the Chapter 7 policy statements.
While the court did not explicitly discuss the statements, we
have held that the district court need not discuss the Chapter 7
statements, so long as it is clear from the record that the
court considered the statements. See United States v. Davis, 53
F.3d 638, 642 (4th Cir. 1995) (district court “need not engage
in ritualistic incantation in order to establish its
consideration of [the Chapter 7 statements]”). Our review of
the record leads us to conclude that the court did consider the
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Chapter 7 statements, and the court did not err, let alone
plainly so.
Accordingly, we affirm the judgment of the district
court revoking supervised release and imposing a sixty-three
month 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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