UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4851
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN COVINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cr-00148-JAG-1)
Submitted: April 4, 2014 Decided: April 16, 2014
Before KING, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Mary E. Maguire, Assistant Federal
Public Defender, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Michael C. Moore,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Covington appeals the district court’s order
revoking his supervised release and imposing a twenty-four-month
sentence. Covington asserts that the district court violated
Tapia v. United States, 131 S. Ct. 2382 (2011), when it
allegedly imposed the statutory maximum sentence to allow him to
receive substance abuse rehabilitation services, and that his
sentence is plainly unreasonable in light of his seven-to-
thirteen-month sentencing range and the parties’ request that he
be sentenced within that range. Finding no reversible error, we
affirm.
In reviewing a sentence imposed after revocation of
supervised release, this court “takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for guidelines sentences.”
United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007)
(internal quotation marks omitted). Thus, we will affirm a
supervised release revocation sentence if it is not plainly
unreasonable. United States v. Thompson, 595 F.3d 544, 546 (4th
Cir. 2010). The first step is to determine whether the sentence
is unreasonable. United States v. Crudup, 461 F.3d 433, 438
(4th Cir. 2006). Only if the sentence is procedurally or
substantively unreasonable will the inquiry proceed to the
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second step, which is to determine whether the sentence is
plainly unreasonable. Id. at 439.
A sentence is procedurally reasonable if the district
court has considered the policy statements contained in Chapter
Seven of the Sentencing Guidelines and the applicable 18 U.S.C.
§ 3553(a) (2012) factors, Crudup, 461 F.3d at 440, and has
adequately explained the chosen sentence. Thompson, 595 F.3d at
547. When reviewing a sentence above the sentencing range, we
“may consider the extent of the deviation, but must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall
v. United States, 552 U.S. 38, 51 (2007). “The sentencing judge
should set forth enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
brackets and quotation marks omitted). Although the Carter
rationale applies to revocation hearings, “[a] court need not be
as detailed or specific when imposing a revocation sentence as
it must be when imposing a post-conviction sentence[.]”
Thompson, 595 F.3d at 547 (noting that a district court’s
reasoning may be “clear from context” and that the court’s
statements throughout the sentencing hearing may be considered).
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A sentence is substantively reasonable if the district
court states a proper basis for its imposition of a sentence up
to the statutory maximum. Crudup, 461 F.3d at 440. Ultimately,
however, the district court has broad discretion to revoke
supervised release and impose a sentence up to that maximum.
Moulden, 478 F.3d at 657.
We conclude that Covington’s twenty-four-month
sentence is not unreasonable. To the contrary, the district
court correctly calculated the policy statement range,
adequately explained its sentence, appropriately relied on the
relevant statutory factors, and sentenced Covington to the
statutory maximum applicable to his offense. When it explained
Covington’s sentence, the district court discussed the
seriousness of his offense, particularly Covington’s breach of
trust, which is consistent with the principle that the breach of
trust inherent in a supervised release violation should be the
sentencing court’s primary consideration. Crudup, 461 F.3d at
437. The district court then went on to discuss Covington’s
poor performance on supervision and his high risk of recidivism.
During this discussion, the district court acknowledged
Covington’s need for drug treatment, but specifically stated
that it was not considering that need in setting the length of
imprisonment.
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Admittedly, the district court did eventually state
during its sentence pronouncement that it wanted Covington
“clean of drugs for as long as possible[,]” which was followed
by its admonition that “the longer you have an opportunity to go
to NA, the better you will be.” Because Covington raised a
Tapia objection to the district court’s explanation for his
sentence, however, he afforded the district court an opportunity
to cure any possible Tapia error. Notably, when Covington’s
counsel objected and argued that the district court was
improperly relying on his need for treatment to justify the
twenty-four-month sentence, the district court clarified that
the reasons for the sentence imposed were punishment for his
breach of trust, deterrence, and Covington’s risk of recidivism.
Thus, viewed in their entirety, the district court’s comments
make clear that its sentencing decision was based on permissible
factors, and at worst, its comments regarding Covington’s need
for drug treatment were quickly corrected mis-statements.
Accordingly, reviewing any error by the district court for
harmlessness, see United States v. Lynn, 592 F.3d 572, 576 (4th
Cir. 2010), we find that even if the district court committed
error when it referred during sentencing to Covington’s need for
drug treatment, the record establishes that “the district court
would have reached the same result even if it had decided the
. . . issue the other way.” See United States v. Montes-Flores,
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736 F.3d 357, 370 (4th Cir. 2013) (internal quotation marks
omitted).
This conclusion is reinforced by the district court’s
written sentencing order, which, like the bulk of its comments
at the hearing, addresses Covington’s breach of trust, his
history and characteristics, and the need to afford adequate
deterrence. Although the oral pronouncement of sentence
controls, United States v. Doswell, 670 F.3d 526, 531 n.3 (4th
Cir. 2012), “we are obliged to accord substantial deference to a
district court’s interpretation of its own judgment.” United
States v. Mann, 709 F.3d 301, 305 (4th Cir. 2013) (internal
quotation marks, alterations and citation omitted). Thus, “to
the extent the record is unclear, we must defer to the
sentencing judge’s reasonable understanding of the record—and
particularly his interpretation of his own earlier findings.”
Id. at 306 (emphasis omitted); see United States v. Naramor, 726
F.3d 1160, 1171 (10th Cir. 2013) (“We, like our fellow circuits,
recognize the importance of Tapia’s instruction but we certainly
are not looking for stray remarks and technical errors to set
aside sentencing decisions that were certainly Tapia
compliant.”). Because the record makes clear that the district
court did not impose the twenty-four-month sentence to allow
Covington an opportunity to obtain rehabilitation in prison, and
since it establishes that the district court would have imposed
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the same sentence upon Covington even if it had not considered
his need for drug treatment, we discern no reversible procedural
error in Covington’s sentence.
We also discern no error in Covington’s sentence based
on the district court’s alleged failure to give sufficient
weight to his policy statement range and explain why it rejected
the parties’ arguments for a sentence within that range. To the
contrary, the record establishes that the district court
explicitly recognized on two separate occasions that the first
thing it was to consider before imposing sentence was
Covington’s sentencing range, which it correctly noted was
seven-to-thirteen months. The record also establishes that the
district court was fully engaged at Covington’s sentencing and
that although it listened to counsel’s arguments for a
particular sentence and Covington’s plea for leniency, it
believed that under the relevant statutory factors, a statutory
maximum sentence was appropriate. In fact, although the
district court afforded Covington an opportunity to plea for
leniency based on his desire to stop using narcotics, the
district court made clear that if Covington truly wanted to get
himself clean, he would need to obtain counseling outside of
prison because, as the parties requested during their argument
for a lesser sentence, it was not going to impose a supervised
release term after his sentence was complete.
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Although the district court imposed a sentence above
the advisory policy statement range, the district court noted
that it was doing so because Covington breached the court’s
trust, he showed a lack of responsibility while on supervised
release, there was a need to deter Covington and others from
criminal conduct and to protect the public from Covington’s
crimes, and to provide Covington with needed educational or
vocational training or other correctional treatment. And
although the district court entertained Covington’s request for
leniency, as well as the Government’s request for a within-
Guidelines sentence, it is clear the district court found that
other factors mandated a higher sentence. We find that the
district court’s rationale was justified and discern no
substantive error in the imposition of Covington’s sentence,
which was the statutory maximum applicable to his offense.
Crudup, 461 F.3d at 440; Moulden, 478 F.3d at 658. Having
discerned no procedural or substantive error in the district
court’s imposition of a twenty-four-month sentence, “it
necessarily follows that [Covington’s] sentence is not plainly
unreasonable.” Crudup, 461 F.3d at 440.
Based on the foregoing, we affirm the district court’s
order. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
AFFIRMED
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