UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRENCE OVERTON BARBOUR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:06-cr-00026-NKM-2)
Submitted: April 28, 2015 Decided: May 20, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Anthony P. Giorno, Acting United States Attorney,
Jean B. Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrence Overton Barbour appeals the 37–month sentence
imposed following the revocation of his supervised release term.
On appeal, Barbour argues that this sentence is plainly
substantively unreasonable because it was ordered to run
consecutively to a previously imposed 20-year state sentence.
Barbour also assigns procedural error to the district court’s
failure to explain why it rejected Barbour’s request for a
concurrent sentence. For the reasons that follow, we reject
these arguments 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 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.
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§ 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 principles, we conclude that Barbour’s
sentence is reasonable. The sentence is within the five-year
statutory maximum authorized for the underlying Class A felony
offense that resulted in the supervised release order. See 18
U.S.C. §§ 3559(a)(1), 3583(e)(3) (2012); see also 21 U.S.C.
§ 841(b)(1)(A) (2006). Our review of the record confirms that
the district court considered the advisory policy statement
range of 37 to 46 months’ imprisonment, the calculation of which
was not disputed in the district court and is not challenged on
appeal, and heard argument from the parties regarding the
appropriate sentence to be imposed. Furthermore, the district
court drew on the § 3553(a) factors enumerated in § 3583(e) in
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sentencing Barbour and explained the reasons for the selected
sentence in terms of those factors.
Barbour asserts the district court committed reversible
procedural error by failing to respond to his argument for a
concurrent sentence. We disagree. The policy statement set
forth in USSG § 7B1.3(f) specifically states that —
Any term of imprisonment imposed upon the revocation
of . . . supervised release shall be ordered to be
served consecutively to any sentence of imprisonment
that the defendant is serving, whether or not the
sentence of imprisonment being served resulted from
the conduct that is the basis of the revocation
of . . . supervised release.
Thus, in imposing a consecutive sentence, the district court
deferred to this advisory policy statement. Such deference,
while not required, was more than proper. See Thompson, 595
F.3d at 547; see also United States v. Moulden, 478 F.3d 652,
656–57 (4th Cir. 2007). And we reject Barbour’s contention that
the district court needed to explain why it adhered to this
clear policy statement, because such a position places an
unwarranted obligation on sentencing courts. See, e.g., Rita v.
United States, 551 U.S. 338, 356–57 (2007) (“[W]hen a judge
decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.”).
This court recognized in Thompson that it “may be hard-
pressed to find any explanation for within-range, revocation
sentences insufficient given the amount of deference we afford
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district courts when imposing these sentences[.]” Thompson, 595
F.3d at 547. Here, the district court opined that a sentence
within the properly calculated policy statement range was
warranted given Barbour’s history and characteristics; the need
to protect the public and to deter Barbour from future crimes
and noncompliance; and the need to avoid unwarranted sentencing
disparities. We thus discern no procedural error in the
district court’s explanation for the selected sentence.
Barbour also contends that imposing a consecutive sentence
was substantively unreasonable because he faced a 20-year state
sentence for the same underlying conduct. But this argument
ignores the established principle that a revocation sentence is
designed to punish the defendant’s failure to abide by the terms
of his supervised release, which is separate and distinct from
the punishment imposed for any underlying criminal conduct.
Crudup, 461 F.3d at 437-38 (“‘[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 USSG ch. 7, pt. A, introductory cmt. 3(b)) (second
alteration in original)). Barbour admitted both of the alleged
violations of the terms of his supervised release, one of which
involved multiple instances of drug trafficking. These
violations reflect Barbour’s serious disregard for his
supervision. Further, as discussed supra, because the court
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plainly identified “a proper basis” for concluding the defendant
should receive the sentence imposed, id. at 440, we readily
conclude that the sentence is substantively reasonable.
Accordingly, we 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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