UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4303
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH BUTLER, a/k/a Harlem,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:14-cr-00048-FL-1)
Submitted: November 19, 2014 Decided: November 24, 2014
Before KING, DUNCAN, and DIAZ, 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Affirmed by unpublished per curiam opinion.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. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:
Keith Butler appeals the district court’s judgment
revoking his supervised release and sentencing him to fifty-one
months’ imprisonment. Butler contends that his sentence is both
procedurally and substantively unreasonable because the court
considered an impermissible sentencing factor. Because Butler
did not raise this issue in the district court, review is for
plain error. United States v. Webb, 738 F.3d 638, 640 (4th Cir.
2013). Under plain error review, Butler must show that (1) the
court erred, (2) the error was clear and obvious, and (3) the
error affected his substantial rights. Id. at 640-41. Even if
Butler meets his burden, we retain discretion to recognize the
error and will deny relief unless the error “seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” Id. at 641 (internal quotation marks omitted).
Finding no error, we affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” Webb, 738 F.3d
at 640. We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
maximum and not “plainly unreasonable.” United States v.
Crudup, 461 F.3d 433, 438 (4th Cir. 2006). In determining
whether a revocation sentence is plainly unreasonable, this
court first assesses the sentence for unreasonableness,
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following the procedural and substantive considerations that are
at issue during its review of original sentences. Id. at 438-
39. In this initial inquiry, we take 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).
In exercising its discretion, the “district court is
guided by the Chapter Seven policy statements in the federal
Guidelines manual, as well as the statutory factors applicable
to revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e).”
Webb, 738 F.3d at 641. “Chapter Seven instructs that, in
fashioning a revocation sentence, ‘the court should sanction
primarily the defendant’s breach of trust, while taking into
account, to a limited degree, the seriousness of the underlying
violation and the criminal history of the violator.’” Id.
(quoting U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b)
(2012)). In determining the length of a sentence imposed upon
revocation of supervised release, 18 U.S.C. § 3583(e) (2012)
requires a sentencing court to consider all but two of the
factors listed in 18 U.S.C. § 3553(a). One of the excluded
factors is the need for the sentence “to reflect the seriousness
of the offense, to promote respect for the law, and to provide
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just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A);
Crudup, 461 F.3d at 439.
A supervised release revocation sentence is
procedurally reasonable if the district court properly
calculates the Chapter Seven advisory policy statement range and
explains the sentence adequately after considering the policy
statements and the 18 U.S.C. § 3553(a) factors it is permitted
to consider in a supervised release revocation case. 18 U.S.C.
§ 3583(e) (2013); United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010); Crudup, 461 F.3d at 439. A revocation sentence
is substantively reasonable if the district court states a
proper basis for concluding that the defendant should receive
the sentence imposed, up to the statutory maximum. Crudup, 461
F.3d at 440. Only if a sentence is found procedurally or
substantively unreasonable will we “then decide whether the
sentence is plainly unreasonable.” Id. at 439. A sentence is
plainly unreasonable if it is clearly or obviously unreasonable.
Id.
We have recognized that “[a]lthough § 3583(e)
enumerates the factors a district court should consider when
formulating a revocation sentence, it does not expressly
prohibit a court from referencing other relevant factors omitted
from the statute.” Webb, 738 F.3d at 641. As long as a court
does not base a revocation sentence predominately on the
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§ 3553(a)(2)(A) factors, “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. at
642.
We conclude that the district court imposed the fifty-
one month sentence predominately on permitted factors and
referenced “respect for the law” in conjunction with the need to
sanction Butler for his breach of trust and to deter him and
others from violating conditions of release in the future. See
Webb, 738 F.3d at 642 (references to omitted sentencing factors
were related to references to permissible sentencing factors).
Accordingly, we find no procedural or substantive error in the
sentence.
We therefore affirm the district court’s 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
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