UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN EUGENE GREEN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:99-cr-00057-1)
Submitted: March 20, 2014 Decided: April 2, 2014
Before WILKINSON, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan D. Byrne, Appellate Counsel, George H. Lancaster, Jr.,
Assistant Federal Public Defender, Charleston, West Virginia,
for Appellant. R. Booth Goodwin, II, United States Attorney,
Erik S. Goes, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin Eugene Green, Jr., appeals the twenty-month
sentence imposed following the revocation of his term of
supervised release. Before this court, Green argues that the
sentence is plainly unreasonable because it is greater than
necessary to satisfy the purposes of supervised release. For
the reasons that follow, we reject this argument and affirm the
revocation judgment.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United States
v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). A revocation
sentence that is both within the applicable statutory maximum
and not “plainly unreasonable” will be affirmed on appeal. *
United States v. Crudup, 461 F.3d 433, 437-38 (4th Cir. 2006).
In determining whether a revocation sentence is plainly
unreasonable, we first assess the sentence for reasonableness,
utilizing “the procedural and substantive considerations”
employed in evaluating an original criminal sentence. Id. at
438.
*
Green concedes that this is the controlling standard of
review in this circuit, but seeks to preserve the issue for
further review by noting the existence of a circuit split as to
the appropriate standard.
2
A revocation sentence is procedurally reasonable if
the district court has considered both the policy statements
contained in Chapter Seven of the Sentencing Guidelines and the
18 U.S.C. § 3553(a) (2012) factors identified in 18 U.S.C.
§ 3583(e) (2012). Id. at 439. The district court must also
explain the chosen sentence, although this explanation “need not
be as detailed or specific” as is required for an original
sentence. United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010). A sentence is substantively reasonable if the
district court states a proper basis for concluding that the
defendant should receive the sentence imposed. Crudup, 461 F.3d
at 440.
If, after considering the above, we decide that the
sentence is reasonable, we will affirm. Id. at 439. Only if we
find the sentence to be procedurally or substantively
unreasonable will we evaluate whether it is “plainly” so. Id.
Against these well-established principles, we readily
conclude that Green’s sentence is reasonable. The sentence is
within the five-year statutory maximum authorized for the
underlying Class A felony drug offense that resulted in the
supervised release order. See 18 U.S.C. §§ 3559(a)(1),
3583(e)(3) (2012); 21 U.S.C. § 841(b)(1)(A) (2012). Our review
of the record confirms that the district court considered the
advisory policy statement range of eight to fourteen months’
3
imprisonment, the calculation of which was not disputed in the
district court and is not challenged on appeal, and heard the
parties’ arguments regarding the appropriate sentence to be
imposed. Furthermore, the district court drew upon the
§ 3553(a) factors enumerated in § 3583(e) in determining the
proper sentence, which was driven, predominately, by Green’s
repeated use of marijuana, despite the court’s prior lenient
treatment and strong admonition that he stop doing so. Thus,
this is little doubt as to the reasonableness of Green’s twenty-
month revocation sentence.
Green counters that the revocation sentence is
procedurally unreasonable because it thwarts “the goals of
supervised release itself.” (Appellant’s Br. at 9). We reject
this argument as it improperly conflates the purposes that
underlie the imposition of a term of supervised release in the
first instance with the purpose for penalizing the defendant’s
violation of those terms. The revocation sentence is designed
to punish the defendant’s failure to abide by the terms of his
supervised release, see Crudup, 461 F.3d at 438 (“‘[T]he
sentence imposed upon revocation [is] intended to sanction the
violator for failing to abide by the conditions of the court-
ordered supervision.’” (quoting U.S. Sentencing Guidelines
Manual ch. 7, pt. A, introductory cmt. 3(b)) (alteration in
original)), and the district court’s comments make plain that it
4
chose the twenty-month sentence to sanction Green’s substantial
breach of the trust and leniency that the court previously
afforded him.
Accordingly, we affirm the revocation judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
5