UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4935
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN KELVIN ELLIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:06-cr-00232-REP-1)
Submitted: June 18, 2014 Decided: July 1, 2014
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Jessica D. Aber, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Kelvin Ellis appeals the twenty-four-month
sentence imposed upon revocation of his term of supervised
release. Ellis’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but questioning whether the
sentence imposed is plainly procedurally unreasonable. Ellis
was advised of his right to file a pro se supplemental brief,
but he did not file one. We affirm.
The district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Thus, we
will not disturb a sentence imposed after revocation of
supervised release that is within the prescribed statutory range
and is not plainly unreasonable. United States v. Crudup, 461
F.3d 433, 437-39 (4th Cir. 2006). In making this determination,
“we follow generally the procedural and substantive
considerations” used in reviewing original sentences. Id. at
438.
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, id. at 439, and has adequately
explained the sentence chosen, though it need not explain the
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sentence in as much detail as when imposing the original
sentence. Thompson, 595 F.3d at 547. 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. If, based on this review,
the appeals court decides that the sentence is not unreasonable,
it should affirm. Id. at 439.
In the initial inquiry, we take a more deferential
posture concerning issues of fact and the exercise of discretion
than when we apply the reasonableness review to sentences
imposed after a criminal conviction. United States v. Moulden,
478 F.3d 652, 656 (4th Cir. 2007). Only if we find the sentence
unreasonable must we decide whether it is “plainly” so. Id. at
657.
Ellis first contends that his supervised release
revocation sentence is plainly procedurally unreasonable because
the court failed to calculate his criminal history category.
Ellis’ original sentence was not a Guidelines sentence and no
criminal history category was determined at the time he was
originally sentenced. Under these “rare” circumstances, the
Policy Statement directs that “the court shall determine the
criminal history category that would have been applicable at the
time the defendant was originally sentenced to the term of
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supervision.” U.S. Sentencing Guidelines Manual § 7B1.4 cmt.
n.1, p.s. (2005).
Ellis would have been in criminal history category VI
at the time he was originally sentenced to a term of
supervision. His supervised release violation, namely
commission of a crime (a state offense of possession with intent
to distribute cocaine), was a Grade A supervised release
violation. See USSG § 7B1.1(a)(1) (establishing that a state
controlled substance offense punishable by twenty years or more
in prison is a Grade A supervised release violation). A Grade A
violation and placement in criminal history category VI yields a
policy statement range of thirty-three to forty-one months’
imprisonment. USSG § 7B1.4(a) (Revocation Table). However,
because the statutory maximum term was two years, 18 U.S.C.
§ 3583(e)(3) (2012), the maximum sentence the court could impose
was twenty-four months. See USSG § 7B1.4(b)(1) (substituting
statutory maximum for Policy Statement range “[w]here the
statutorily authorized maximum term of imprisonment that is
imposable upon revocation is less than the minimum of the
applicable [Policy Statement] range”). Therefore, any failure
by the district court to calculate the criminal history category
and resulting Policy Statement range had no impact on Ellis’
sentence and did not render the sentence plainly procedurally
unreasonable.
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Next, Ellis argues that his sentence was plainly
procedurally unreasonable because the district court relied on a
prohibited statutory sentencing factor, namely the need to
promote respect for the law. The statute governing supervised
release provides that a court can revoke supervised release and
impose a term of imprisonment after considering certain
enumerated 18 U.S.C. § 3553(a) factors. 18 U.S.C. § 3583(e)(3)
(2012). Section 3583(e) lists all the § 3553(a) factors except
for those in § 3553(a)(3) (“the kinds of sentences available”)
and those in § 3553(a)(2)(A) (“the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense”).
In imposing the twenty-four-month sentence, the court
considered § 3553(a) factors enumerated in § 3583(e)(3),
including the need to protect the public and to deter Ellis and
others from future criminal conduct. See 18 U.S.C.
§ 3553(a)(2)(B), (C). However, the court also explicitly
considered the need to promote respect for the law, a factor
derived from 18 U.S.C. § 3553(a)(2)(A), which the district court
may not consider under § 3583(e)(3). See Crudup, 461 F.3d at
439 (stating that a court may not impose a revocation sentence
based upon § 3553(a) factors that are not enumerated in §
3583(e)).
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This court has recently held, however, that “a
district court’s reference to the § 3553(a)(2)(A) sentencing
considerations, without more, [does not] automatically render a
revocation sentence unreasonable.” United States v. Webb, 738
F.3d 638, 642 (4th Cir. 2013). Although in Webb we warned that
a revocation sentence should not be “based predominately on the
[§ 3553(a)(2)(A) factors], . . .,” we also noted that “mere
reference to such considerations does not render a revocation
sentence procedurally unreasonable when those factors are
relevant to, and considered in conjunction with, the enumerated
§ 3553(a) factors.” Id.
Here, the district court’s consideration of an
impermissible factor went hand-in-hand with its consideration of
appropriate § 3553(a) factors. While the court cited the need
for Ellis’ sentence to promote respect for the law, it did so in
conjunction with authorized § 3553(a) factors, namely the need
to protect the public and provide deterrence, both to Ellis and
others. We therefore conclude, pursuant to Webb, that the
district court’s consideration of a prohibited § 3553(a)(2)(A)
factor was not plainly unreasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm. This court requires that counsel
inform Ellis, in writing, of his right to petition the Supreme
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Court of the United States for further review. If Ellis
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion was served on Ellis.
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
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