UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4397
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARJAY ORLANDO BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00022-F-1)
Submitted: March 15, 2016 Decided: June 9, 2016
Before KING, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Sonya M. Allen,
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Unpublished opinions are not binding precedent in this circuit.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:
Arjay Orlando Brown appeals the district court’s judgment
revoking his supervised release and sentencing him to 35 months’
imprisonment. Brown first contends that his sentence is plainly
procedurally unreasonable because the court failed to adequately
explain the reasons for the selected sentence and considered an
impermissible sentencing factor. Brown further argues that his
sentence is substantively unreasonable as it is greater than
necessary to achieve the purposes of sentencing. 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
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, 439–40
(4th Cir. 2006). In determining whether a revocation sentence
is plainly unreasonable, we first assess the sentence for
unreasonableness, generally following the procedural and
substantive considerations that are at issue in 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).
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Only if we find the sentence 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).
In exercising its sentencing discretion, the district 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.” Webb, 738 F.3d at 641. 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). The
excluded factors include, as relevant here, 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.
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. Thus, while the court may not impose a
revocation sentence “based 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. at 642.
Brown first assigns error to the district court’s
explanation for its upward variant sentence. Brown preserved
his challenge to the court’s explanation “[b]y drawing arguments
from § 3553 for a sentence different than the one ultimately
imposed.” United States v. Lynn, 592 F.3d 572, 578 (4th Cir.
2010).
Brown’s argument fails on this record. After announcing
the 35-month sentence, the court recognized Brown’s numerous and
varied violations of the conditions of his release, which
continued even after the court gave Brown a second chance at
compliance. The court’s comments, however brief, thus reveal
that it was focused primarily on appropriate sentencing
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considerations, including Brown’s history and characteristics
and the need to deter future violations of supervised release
orders. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), 3583(e). And
although not particularly identified as such, it is clear that
Brown’s ongoing violative conduct amounted to a significant
breach of the trust and leniency the court had extended Brown at
his prior revocation hearing. See U.S. Sentencing Guidelines
Manual ch. 7, pt. A(3)(b), p.s. (2007). We thus reject this
aspect of Brown’s challenge to the procedural reasonableness of
his upward variant sentence.
Brown next assigns reversible error to the court’s
consideration of one of the § 3553(a) factors excluded from
§ 3583(e). We review this argument for plain error because
Brown did not object to the district court’s consideration of
this sentencing factor at the revocation hearing. United States
v. Lemon, 777 F.3d 170, 172 (4th Cir. 2015). To establish plain
error, Brown must show “(1) that the district court erred, (2)
that the error is clear or obvious, and (3) that the error
affected his substantial rights, meaning that it affected the
outcome of the district court proceedings.” Webb, 738 F.3d at
640–41 (internal quotation marks omitted). Even if Brown makes
such a showing, “we retain discretion whether to recognize the
error and will deny relief unless the . . . error seriously
affects the fairness, integrity or public reputation of judicial
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proceedings.” Id. at 641 (alteration and internal quotation
marks omitted).
Despite Brown’s argument to the contrary, we conclude that
the disfavored factor cited here — the need for the sentence to
promote respect for the law — was not a focal point for the
court’s sentencing decision. Indeed, it was mentioned only
briefly, and immediately before the court discussed in greater
detail how Brown’s chronic and repeated violations of his
supervised release led the court to conclude that the longest
available sentence was the appropriate sentence to impose. We
thus discern no error, let alone plain error, arising from the
court’s mention of the need for the sentence to promote respect
for the law.
Finally, there is Brown’s assertion that his sentence is
substantively unreasonable because, when weighed against certain
aspects of Brown’s personal circumstances, it is greater than
necessary to comply with the goals of § 3553(a). 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. As we have said, the district court
identified appropriate grounds for the 35–month, statutory
maximum sentence. We thus conclude that the sentence is
substantively reasonable. See id. (holding that imposition of
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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). Finally, we decline counsel’s
invitation to reweigh the countenanced § 3553(a) factors and the
relevant circumstances in this case, as this is outside our
purview. See United States v. Jeffery, 631 F.3d 669, 679 (4th
Cir. 2011) (recognizing that “district courts have extremely
broad discretion when determining the weight to be given each of
the § 3553(a) factors”).
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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