NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3808
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UNITED STATES OF AMERICA
v.
MATTHEW NABER,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2-04-cr-00173-001)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit L.A.R. 34.1(a)
September 4, 2018
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.
(Filed: September 11, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Matthew Naber appeals the District Court’s judgment of sentence imposing a 60-
month term of imprisonment. We will affirm.1
This appeal raises one issue: was Naber’s sentence substantively unreasonable?
Our highly deferential standard of review requires us to affirm unless “no reasonable
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d
Cir. 2009) (en banc). We hold that Naber has failed to carry this heavy burden. See
United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007).
While on supervised release for a prior federal offense, Naber was convicted in
New Jersey state court of possession with intent to distribute controlled substances. He
was sentenced to ten years’ imprisonment, with parole eligibility after five years. Soon
after Naber completed his state prison term, the Government petitioned the District Court
to revoke his federal supervised release and Naber pleaded guilty to a Grade A violation.
United States Sentencing Guidelines (USSG) § 7B1.1(a)(1) (2016). Naber’s advisory
Guidelines range was 51 to 63 months, USSG § 7B1.4(a), and the District Court imposed
the statutory maximum sentence of 60 months’ imprisonment. 18 U.S.C. § 3583(e)(3).
Naber’s principal argument on appeal is that the District Court punished him for
violating New Jersey law rather than for the “breach of trust” that defines the separate
wrong of a supervised release violation. Naber Br. 12. Naber argues that the District
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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Court focused on “the seriousness of the underlying violation and the criminal history of
the violator” instead of taking those considerations into account only “to a limited
degree” and “sanction[ing] primarily [Naber’s] breach of trust” as the Sentencing
Guidelines require. Naber Br. 20. See USSG Ch. 7, Pt. A, § 3(b) (2016).
A complete review of the record belies Naber’s argument. It is true that the
District Court noted “the seriousness of what happened here” and its responsibility “to
impose a sentence . . . to reflect the seriousness of what occurred here.” App. 31–32;
Naber Br. 11. But those comments do not prove that the District Court wrongly focused
on the underlying state crime. In fact, the District Court explicitly distinguished its
sentence for Naber’s violation of his conditions of supervised release from the state
sentence that triggered the violation. It did so by connecting “the seriousness of what
happened here” to “the fact that [Naber was] on supervised release and yet felt it was
acceptable in some way, shape or form to engage in further criminal conduct.” App. 31.
The District Court made clear that its sentence was meant to address Naber’s violation of
the conditions of his supervised release, reflect his extensive criminal history, and deter
him from future violations.
Naber responds that the 60-month federal sentence must have been to punish him
for his state offense because he served equal time on the state conviction. There are at
least two problems with this argument. First, the state court sentenced Naber to ten years’
imprisonment, twice the length of time imposed by the District Court. Second, the fact
that Naber’s federal sentence was equal to the parole-ineligible time he served in state
prison does not mean that the federal sentence was punishment for the state crime. This is
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especially true where, as here, the federal sentence is within the Sentencing Guidelines
for the violation. See, e.g., United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006)
(affirming sentence upon revocation of supervised release that “exceed[ed] the initial
sentence of imprisonment”) (emphasis added).
The record also reflects that the District Court carefully assessed Naber’s case in
light of the factors enumerated in 18 U.S.C. § 3553(a). The Court acknowledged its
“responsibility . . . to impose a sentence that is sufficient but not greater than necessary”
and noted that the sentence “must avoid unwarranted sentencing disparities[,] . . . protect
the community[,] and not only deter others but [also] deter [Naber] specifically.” App.
30. The Court acknowledged the effort and progress Naber had made “to be a productive
member of society” during his initial period of supervised release, but recognized that it
had to consider the nature and circumstances of the offense to which Naber pleaded
guilty and his individual history and characteristics, including his extensive criminal
history. App. 31. This was “more than a rote recitation of the § 3553(a) factors” and
demonstrates the District Court’s thorough consideration and application of these factors
in its decision to impose a sentence within Naber’s Sentencing Guidelines range. Tomko,
562 F.3d at 567.
For the reasons stated, we will affirm Naber’s judgment of sentence.
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