UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL PERNELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:03-cr-00282-FL-1)
Submitted: November 20, 2014 Decided: November 24, 2014
Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Carl Pernell appeals the forty-eight-month upward
variant sentence imposed following the revocation of his term of
supervised release. Before this court, Pernell asserts that the
district court procedurally erred in classifying the most
significant of his four supervised release violations as a Grade
A violation and maintains that remand is necessary to allow the
court to conduct its variance analysis based on what he contends
is the correct, lower policy statement range. For the reasons
that follow, we disagree that remand is necessary 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”
*
It is undisputed that Pernell’s sentence is within the
applicable five-year statutory maximum. See 21 U.S.C.
§§ 841(a)(1), 846 (2012); 18 U.S.C. §§ 3559(a)(1), 3583(e)(3)
(2012).
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employed in evaluating an original criminal sentence. Id. at
438.
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.
Assuming, without deciding, that the district court
erred in determining that the most serious of the four alleged
violations qualified as a Grade A violation, we readily conclude
that the error is harmless. See United States v. Savillon-
Matute, 636 F.3d 119, 123-24 (4th Cir. 2011) (explaining the
harmless error analysis employed when evaluating claims of
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procedural sentencing error). It is abundantly clear from the
record that the court would impose the same sentence regardless
of whether the violation was a Grade A or a Grade B violation;
indeed, the district court said as much at the close of the
revocation hearing.
Pernell avers that the error is not harmless because
the district court’s explanation for the variance is
insufficient to justify what amounts to a more extensive
variance. We cannot agree. The district court offered a robust
and persuasive explanation for the sentence it selected, which
was rooted in the relevant § 3553(a) factors. First, the
district court was concerned by the fact that, despite the
court’s prior lenient treatment, Pernell still did not abide by
the terms of his supervised release in that he frequently used
and sold drugs. See Crudup, 461 F.3d at 440 (holding that
imposition of statutory maximum term of imprisonment was
substantively reasonable, given that the district court
expressly relied on defendant’s “admitted pattern of violating
numerous conditions of his supervised release[,]” despite
several extensions of leniency by the district court). In
addition to Pernell’s repeated and unabated drug use, the court
also predicated its sentencing decision on Pernell’s five-year
period of abscondence from supervision.
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These facts demonstrate the severity of Pernell’s
breach of the court’s trust, see Webb, 738 F.3d at 641 (citing
to Chapter Seven of the Sentencing Guidelines, which instructs
that a supervised release revocation sentence “should sanction
primarily the defendant’s breach of trust” (internal quotation
marks omitted)), and we conclude that this explanation is more
than sufficient to justify the variant sentence — regardless of
the starting point for the variance. See United States v.
Brown, 495 F. App’x 300, 304 (4th Cir. 2012) (unpublished after
argument) (affirming revocation judgment against assignment of
error in classifying violation conduct because, on the relevant
record, this court was “hard pressed to discern an abuse of
discretion” in the district court’s decision to impose the
statutory maximum sentence), cert. denied, 133 S. Ct. 1302
(2013). 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
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