UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4937
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OSWALD MILES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00382-FL-1)
Submitted: June 15, 2015 Decided: July 6, 2015
Before NIEMEYER, KEENAN, 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Affirmed by unpublished per curiam opinion.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, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Oswald Miles, Jr., appeals the 24-month sentence imposed
following the revocation of his term of supervised release. On
appeal, Miles argues that his sentence was plainly unreasonable,
both procedurally and substantively. Finding no error, * we
affirm.
“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). We will
affirm a revocation sentence that “is within the prescribed
statutory range and not plainly unreasonable.” United States v.
Crudup, 461 F.3d 433, 440 (4th Cir. 2006). We first consider
whether the sentence imposed is procedurally and substantively
unreasonable, applying the same general considerations we employ
in our review of original criminal sentences. Id. at 438. 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). Only if we find the sentence
*The Government argues that Miles’ challenges to the
procedural reasonableness of his sentence should be reviewed for
plain error. We conclude that Miles adequately preserved his
challenge to the court’s explanation for his sentence. See
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).
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unreasonable will we consider whether it is “plainly” so. Id.
at 657.
A supervised release revocation sentence is procedurally
reasonable if the district court considered the policy
statements contained in Chapter Seven of the Sentencing
Guidelines and the 18 U.S.C. § 3553(a) (2012) factors applicable
to revocation sentences. Crudup, 461 F.3d at 439. The district
court also must provide a statement of reasons for the sentence
imposed, but that explanation “need not be as detailed or
specific when imposing a revocation sentence as it must be when
imposing a post-conviction sentence.” United States v.
Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal quotation
marks omitted).
In fashioning an appropriate 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.”
U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b) (2010)
(revocation table). According to the statutory authority
governing supervised release revocation, see 18 U.S.C. § 3583(e)
(2012), the court also must consider some factors enumerated
under 18 U.S.C. § 3553(a), although not the need for the
sentence “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
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offense,” 18 U.S.C. § 3553(a)(2)(A). See 18 U.S.C. § 3583(e);
Crudup, 461 F.3d at 439. These omitted factors, however, “are
intertwined with the factors courts are expressly authorized to
consider under § 3583(e).” Webb, 738 F.3d at 641. Thus,
although the court may not impose a revocation sentence
“predominately” on the § 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.
A revocation sentence is substantively reasonable if the
district court stated a proper basis for concluding the
defendant should receive the sentence imposed, up to the
statutory maximum. Crudup, 461 F.3d at 440. In reviewing a
departure or variance from the policy statement range, this
court considers “whether the sentencing court acted reasonably,
both with respect to its decision to impose such a sentence and
with respect to the extent of the divergence from the sentencing
range.” United States v. Washington, 743 F.3d 938, 944 (4th
Cir. 2014) (internal quotation marks omitted).
Miles argues that the district court committed procedural
error when it imposed an upward variance in order to promote
respect for the law and to account for the seriousness of his
offense conduct. He also challenges the substantive
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reasonableness of his sentence, arguing that the court’s
explanation of the sentence failed to justify its 100% departure
above the top of the applicable policy statement range.
In its statements throughout the hearing, the court
recognized, and expressed concern for, Miles’ continued poor
decision-making and pattern of criminal and assaultive behavior,
his numerous and varied violations of his release conditions,
and his failure to learn from his mistakes and to be deterred by
his prior prison sentences. The court’s comments reveal that it
focused primarily on appropriate sentencing considerations,
including the nature and circumstances of the violations, Miles’
history and characteristics, and the need for deterrence and to
protect the public. See 18 U.S.C. §§ 3553(a)(1), (2)(B), (C),
3583(e). The court specifically characterized Miles’ conduct as
a significant breach of trust. See USSG ch. 7, pt. A(3)(b).
Although the court briefly stated that the sentence would
serve to promote respect for the law, this statement is the sort
of “mere reference” that we found permissible in Webb. See 738
F.3d at 642. Moreover, the district court’s statement that
Miles “presented a great danger and a great risk” was not
specifically directed to the seriousness of Miles’ offense, but
to his history of undeterred criminal behavior and poor
decision-making and his failure to comply in a meaningful way
with the conditions of his supervised release. We find these
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considerations adequate to support the court’s decision to vary
upward, and we discern no procedural or substantive
unreasonableness in Miles’ sentence.
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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