UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAMILTON ROBERT PACE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:97-cr-00056-NKM-2)
Submitted: February 14, 2013 Decided: February 28, 2013
Before GREGORY, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Andrea L. Harris,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Charlottesville, Virginia, for
Appellant. Timothy J. Heaphy, 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Unpublished opinions are not binding precedent in this circuit.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:
Hamilton Robert Pace appeals his twenty-one month
sentence imposed following the revocation of his supervised
release. Pace claims that his sentence is plainly unreasonable
because the district court impermissibly relied on the goals of
sentencing listed in 18 U.S.C. § 3553(a)(2)(A) (2006) when
imposing his revocation sentence. We affirm.
Generally, a district court has broad discretion when
imposing sentence upon revoking supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm such a sentence if it is within the statutory maximum and
is not “plainly unreasonable.” United States v. Crudup, 461
F.3d 433, 439-40 (4th Cir. 2006). In making this determination,
we first consider whether the sentence imposed is procedurally
or substantively unreasonable. Id. at 438. Only if we so find,
will we “then decide whether the sentence is plainly
unreasonable, relying on the definition of ‘plain’ that we use
in our ‘plain’ error analysis.” Id. at 439.
Because Pace did not allege the district court’s
improper reliance on § 3553(a)(2)(A) below, he must also satisfy
the additional requirements of plain error review. See United
States v. Bennett, 698 F.3d 194, 199-200 (4th Cir. 2012)
(unpreserved claim that district court considered impermissible
factor when imposing revocation sentence is reviewed for plain
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error), petition for cert. filed, __ U.S.L.W. __ (Jan. 23,
2013); United States v. Hargrove, 625 F.3d 170, 183-84 (4th Cir.
2010) (plain error review applies where defendant claims
substantive unreasonableness for the first time based on
district court’s consideration of improper factor when
explaining basis for sentence), cert. denied, 132 S. Ct. 292
(2011). Accordingly, Pace must show 1) that the district court
erred, 2) that the error is clear and obvious, and 3) that the
error affected his substantial rights. United States v. Olano,
507 U.S. 725, 732-34 (1993). Pace fails to meet these
requirements.
As Pace correctly notes, 18 U.S.C. § 3583(e) (2006)
mandates that a district court consider a majority of the
factors listed in 18 U.S.C. § 3553(a) when imposing a revocation
sentence. 18 U.S.C. § 3583(e). Omitted from § 3583(e),
however, are the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, and
provide just punishment. 18 U.S.C. § 3553(a)(2)(A).
Accordingly, a district court may not impose a
revocation sentence based predominantly on such considerations.
Crudup, 461 F.3d at 439, see also United States v. Miller, 634
F.3d 841, 844 (5th Cir.) (district court may not consider
§ 3553(a)(2)(A) factors when imposing sentence upon revocation
of supervised release), cert. denied, 132 S. Ct. 496 (2011),
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United States v. Miqbel, 444 F.3d 1173, 1182-83 (9th Cir. 2006)
(same). To do so contravenes the U.S. Sentencing Commission’s
direction that “at revocation 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).
Here, the district court’s explanation of Pace’s
sentence does not indicate a plainly improper reliance on
§ 3553(a)(2)(A). First, the court’s reference to the nature of
Pace’s numerous violations of his supervised release was clearly
appropriate, especially when considered in conjunction with its
repeated conclusion that Pace, if not incarcerated, would likely
reoffend and further harm the public. Indeed, at no point did
the court opine on the seriousness or gravity of Pace’s
violations, but, instead, focused on their numerosity and Pace’s
repeated squandering of the opportunities his probation officer
gave him to remain on supervised release. Similarly, although
the district court mentioned imposing “just” punishment, its
single reference to this consideration was made in direct
connection with its determination that Pace’s sentence would
adequately deter violations of supervised release, an approved
factor under § 3583(e).
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Moreover, we find no plain error in the district
court’s references to preserving the public’s respect for the
court and the law. The court’s comments appear to have been in
response to Pace’s request that his sentence involve little or
no incarceration so that he could pursue treatment for his drug
addiction in a non-custodial setting. Noting Pace’s extensive
criminal record and his repeated violations of his supervised
release, the court rejected Pace’s proposal. The court also
noted its concern that the public would object to allowing Pace
to remain unincarcerated because he had already misspent
multiple opportunities to remain on supervised release and
receive the treatment he requested.
Accordingly, although couched in terms of promoting
respect for the law and the court, the court’s comments were
clearly and properly grounded in its consideration of Pace’s
individual history and characteristics, the need to adequately
sanction Pace’s repeated violation of the court’s trust, and
protection of the public. When taken in conjunction with the
other permissible factors the district court considered in
determining Pace’s sentence, including its “biggest” concern,
Pace’s risk of recidivism, we find no plain violation of
§ 3583(e).
Further, even assuming error, Pace is unable to show
any effect on his substantial rights. Pace’s sentence is at the
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bottom of his Chapter Seven range of twenty-one to twenty-four
months and is thus presumed reasonable. United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007). Further, the district court
fully considered and clearly rejected Pace’s primary argument
for a sentence below twenty-one months, that he should be
allowed yet another attempt at overcoming his drug addiction in
lieu of incarceration. We further observe that Pace has not
argued that he would have received a lower sentence had the
district court not committed the errors he alleges, and we
discern no basis to conclude that this would be the case. See
United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010) (to
demonstrate that sentencing error affected substantial rights,
“the defendant must show that he would have received a lower
sentence had the error not occurred”); see also Bennett, 698
F.3d at 202 (where it was clear that error did not affect
sentence imposed, we refuse “to order a purposeless remand where
the district court does nothing more than reiterate what it has
made clear all along”).
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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