UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4940
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH L. CONYERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District
Judge. (3:06-cr-00321-MBS-4)
Submitted: February 17, 2012 Decided: March 13, 2012
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, T. DeWayne Pearson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After revoking Keith L. Conyers’ supervised release
for the third time in approximately four years, the district
court ordered Conyers to serve a fourteen-month term of
incarceration to be followed by a three-year term of supervised
release. In his appeal of that judgment, Conyers does not
challenge the revocation of his supervised release or the
reasonableness of the term of imprisonment he received.
Instead, Conyers’ sole appellate argument is that the district
court abused its discretion in imposing an additional term of
supervised release. We reject this argument as without merit.
However, because the fourteen-month term of supervised release
conflicts with our decision in United States v. Maxwell, 285
F.3d 336, 341 (4th Cir. 2002), we vacate that portion of the
judgment order and remand this case for the imposition of a term
of supervised release that conforms with Maxwell.
The district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release, United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010), and we
will affirm a revocation sentence if it is within the governing
statutory range and not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In reviewing a
revocation sentence, this court takes a more deferential posture
regarding the issues of fact and the exercise of discretion than
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it does when reviewing the reasonableness of a post-conviction
sentence. United States v. Moulden, 478 F.3d 652, 656 (4th Cir.
2007). Only if we conclude the sentence is unreasonable must we
decide “whether it is ‘plainly’ so.” Id. at 657.
Conyers asserts that his proven inability to conform
to and abide by the terms of supervision demonstrates that
supervision is ineffective. Thus, Conyers argues, ordering
another term of supervised release was an abuse of discretion,
because it is illogical and wasteful of limited judicial and
probationary resources. Conyers’ argument, however,
misapprehends the governing standard. As we have explained,
“[a] district court abuses its discretion if it fails adequately
to take into account judicially recognized factors constraining
its exercise, or if it bases its exercise of discretion on an
erroneous factual or legal premise.” DIRECTV, Inc. v. Rawlins,
523 F.3d 318, 323 (4th Cir. 2008) (internal quotation marks
omitted). In reviewing a district court’s decision for an abuse
of discretion, this court does not consider “whether we would
have come to the same conclusion as the district court if we
were examining the matter de novo.” Morris v. Wachovia Sec.
Inc., 448 F.3d 268, 277 (4th Cir. 2006). Instead, we will
discern an abuse of discretion if, after reviewing the record
and reasoning of the district court, we are left with “a
definite and firm conviction that the court below committed a
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clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors.” Id. (internal quotation
marks and citation omitted).
Given this deferential standard, we readily conclude
that the district court did not abuse its discretion in imposing
an additional term of supervised release. The governing statute
specifically authorizes the district court to impose an
additional term of supervised release on an offender who has
violated his present term of supervised release. See 18 U.S.C.
§ 3583(h) (2006). Further, that this was Conyers’ third
supervised release revocation proceeding demonstrates Conyers’
unwillingness to abide by the terms of his supervised release,
which in itself justifies the court’s decision to impose another
term of supervision. Accord United States v. Metoyer, 341 F.
App’x 809, 811-12 (3d Cir. 2009) (unpublished after argument)
(upholding district court’s decision to impose a subsequent term
of supervised release despite offender’s “lack of amenability to
supervised release” (internal quotation marks omitted)).
Indeed, accepting Conyers’ argument to the contrary would serve
only to reward Conyers’ non-compliance, a result we cannot
sanction.
We next consider the duration of the term of
supervised release the district court imposed. “The length of
such a term of supervised release shall not exceed the term of
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supervised release authorized by statute for the offense that
resulted in the original term of supervised release, less any
term of imprisonment that was imposed upon revocation of
supervised release.” 18 U.S.C. § 3583(h). Conyers’ underlying
offense conduct was a Class B felony. See 18 U.S.C. §§ 1344,
3559(a)(2) (2006). Thus, pursuant to 18 U.S.C. § 3583(b)(1)
(2006), the maximum term of supervised release Conyers could
have received was sixty months.
It is well settled that “the plain meaning of the
phrase ‘less any term of imprisonment that was imposed upon
revocation of supervised release’ in § 3583(h) is that the
prison term in the current revocation sentence, together with
all prison time imposed under any prior revocation sentence or
sentences, must be aggregated.” Maxwell, 285 F.3d at 341. In
the aggregate, Conyers’ three revocation sentences total thirty-
six months’ imprisonment. Accordingly, the maximum term of
supervised release the court could have imposed for the instant
violation was twenty-four months. See 18 U.S.C. § 3583(h). We
thus conclude the district court erred in ordering Conyers to
serve an additional thirty-six-month term of supervised release
upon his release from incarceration. *
*
Although Conyers did not raise this argument on appeal, we
have elected to exercise our discretion to correct this error in
light of the strong societal interest in ensuring that criminal
(Continued)
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For these reasons, we affirm the district court’s
judgment in part, but we vacate the term of supervised release
and remand this case to the district court for the imposition of
a term of supervised release that conforms with Maxwell. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
defendants are not subjected to greater punishment than is
statutorily authorized. See, e.g., Wash. Gas Light Co. v. Va.
Elec. & Power Co., 438 F.2d 248, 250-51 (4th Cir. 1971)
(explaining that, “if deemed necessary to reach the correct
result, an appellate court may sua sponte consider points not
presented to the district court and not even raised on appeal by
any party”).
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