US v. Benjamin Green, Jr., No. 13-4655 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4655 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN EUGENE GREEN, JR., Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:99-cr-00057-1) Submitted: March 20, 2014 Decided: April 2, 2014 Before WILKINSON, DUNCAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Jonathan D. Byrne, Appellate Counsel, George H. Lancaster, Jr., Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin, II, United States Attorney, Erik S. Goes, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Benjamin Eugene Green, Jr., appeals the twenty-month sentence imposed following the revocation of his term of supervised release. Before this court, Green argues that the sentence unreasonable is plainly because it is greater than necessary to satisfy the purposes of supervised release. For the reasons that follow, we reject this argument and affirm the revocation judgment. A district court has broad discretion when imposing a sentence upon revocation of supervised release. United States v. A Webb, 738 F.3d 638, 640 (4th Cir. 2013). revocation sentence that is both within the applicable statutory maximum and not plainly unreasonable will be affirmed on appeal. * United States v. Crudup, 461 F.3d 433, 437-38 (4th Cir. 2006). In determining whether a revocation sentence is plainly unreasonable, we first assess the sentence for reasonableness, utilizing the procedural and substantive considerations employed in evaluating an original criminal sentence. Id. at 438. * Green concedes that this is the controlling standard of review in this circuit, but seeks to preserve the issue for further review by noting the existence of a circuit split as to the appropriate standard. 2 A revocation sentence is procedurally reasonable if the district court has considered both the policy statements contained in Chapter Seven of the Sentencing Guidelines and the 18 U.S.C. § 3553(a) § 3583(e) (2012). (2012) factors Id. at 439. identified in 18 U.S.C. The district court must also explain the chosen sentence, although this explanation need not be as detailed sentence. Cir. or specific as is required for an original United States v. Thompson, 595 F.3d 544, 547 (4th 2010). A sentence is substantively reasonable if the district court states a proper basis for concluding that the defendant should receive the sentence imposed. Crudup, 461 F.3d at 440. If, after considering the above, we decide that the sentence is reasonable, we will affirm. find the sentence to be Id. at 439. procedurally or Only if we substantively unreasonable will we evaluate whether it is plainly so. Id. Against these well-established principles, we readily conclude that Green s sentence is reasonable. within the underlying supervised five-year Class A release statutory felony order. drug maximum offense See 18 The sentence is authorized that U.S.C. for resulted the in the §§ 3559(a)(1), 3583(e)(3) (2012); 21 U.S.C. § 841(b)(1)(A) (2012). Our review of the record confirms that the district court considered the advisory policy statement range of eight to fourteen months 3 imprisonment, the calculation of which was not disputed in the district court and is not challenged on appeal, and heard the parties arguments imposed. Furthermore, § 3553(a) proper regarding factors sentence, the enumerated which the was appropriate district in court § 3583(e) driven, sentence drew to be the determining in upon the predominately, by Green s repeated use of marijuana, despite the court s prior lenient treatment and strong admonition that he stop doing so. Thus, this is little doubt as to the reasonableness of Green s twentymonth revocation sentence. Green procedurally counters that unreasonable because supervised release itself. this argument as it the revocation it thwarts sentence the (Appellant s Br. at 9). improperly conflates the is goals of We reject purposes that underlie the imposition of a term of supervised release in the first instance with the purpose for penalizing the defendant s violation of those terms. The revocation sentence is designed to punish the defendant s failure to abide by the terms of his supervised release, see Crudup, 461 F.3d at 438 ( [T]he sentence imposed upon revocation [is] intended to sanction the violator for failing to abide by the conditions of the courtordered supervision. Manual ch. 7, pt. A, (quoting U.S. introductory cmt. Sentencing 3(b)) Guidelines (alteration in original)), and the district court s comments make plain that it 4 chose the twenty-month sentence to sanction Green s substantial breach of the trust and leniency that the court previously afforded him. Accordingly, we affirm the revocation judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 5
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