US v. Keith Butler, No. 14-4303 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4303 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEITH BUTLER, a/k/a Harlem, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:14-cr-00048-FL-1) Submitted: November 19, 2014 Decided: November 24, 2014 Before KING, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 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 Unpublished opinions are not binding precedent in this circuit.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: Keith Butler appeals the district court’s judgment revoking his supervised release and sentencing him to fifty-one months’ imprisonment. procedurally and Butler contends that his sentence is both substantively unreasonable because considered an impermissible sentencing factor. the court Because Butler did not raise this issue in the district court, review is for plain error. 2013). United States v. Webb, 738 F.3d 638, 640 (4th Cir. Under plain error review, Butler must show that (1) the court erred, (2) the error was clear and obvious, and (3) the error affected his substantial rights. Id. at 640-41. Even if Butler meets his burden, we retain discretion to recognize the error and will deny relief unless the error “seriously affect[s] the fairness, proceedings.” integrity or public reputation of judicial Id. at 641 (internal quotation marks omitted). Finding no error, we affirm. “A district court has broad discretion when imposing a sentence upon revocation of supervised release.” at 640. We will affirm a sentence imposed after revocation of supervised release maximum and not Crudup, 461 F.3d whether a court Webb, 738 F.3d if is within the “plainly 433, (4th applicable unreasonable.” revocation first it assesses 438 sentence the Cir. is 2 2006). plainly sentence United for In statutory States v. determining unreasonable, this unreasonableness, following the procedural and substantive considerations that are at issue during its review of original sentences. Id. at 438- 39. “deferential In this initial inquiry, we take a more 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). In exercising its discretion, the “district court is guided by the Chapter Seven policy statements in the federal Guidelines manual, as well as the statutory factors applicable to revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e).” Webb, 738 F.3d fashioning a at 641. revocation “Chapter sentence, Seven ‘the instructs court that, should in 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.’” Id. (quoting U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b) (2012)). In determining the length of a sentence imposed upon revocation requires a of supervised sentencing release, court to 18 U.S.C. consider factors listed in 18 U.S.C. § 3553(a). all § 3583(e) but two (2012) of the One of the excluded factors is the need for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and to provide 3 just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A); Crudup, 461 F.3d at 439. A supervised revocation reasonable procedurally release if district the sentence court is properly calculates the Chapter Seven advisory policy statement range and explains the sentence adequately after considering the policy statements and the 18 U.S.C. § 3553(a) factors it is permitted to consider in a supervised release revocation case. 18 U.S.C. § 3583(e) (2013); United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010); Crudup, 461 F.3d at 439. is substantively reasonable if the A revocation sentence district court states a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory maximum. F.3d at 440. substantively Only if a unreasonable sentence is will “then we sentence is plainly unreasonable.” found Crudup, 461 procedurally decide Id. at 439. whether or the A sentence is plainly unreasonable if it is clearly or obviously unreasonable. Id. 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. does revocation not base a sentence 4 As long as a court 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 conjunction with, the enumerated § 3553(a) factors.” in Id. at 642. We conclude that the district court imposed the fiftyone month sentence predominately on permitted factors and referenced “respect for the law” in conjunction with the need to sanction Butler for his breach of trust and to deter him and others from violating conditions of release in the future. See Webb, 738 F.3d at 642 (references to omitted sentencing factors were related to references to permissible sentencing factors). Accordingly, we find no procedural or substantive error in the sentence. We therefore affirm the district court’s 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