United States v. Antonio Butts , 633 F. App'x 127 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4469
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO LAMONT BUTTS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
Chief District Judge. (4:08-cr-00062-RBS-TEM-1)
Submitted: January 27, 2016 Decided: February 11, 2016
Before MOTZ, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Rodolfo Cejas, II, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Dee M. Sterling, Assistant
United States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Lamont Butts appeals the district court’s order
imposing a 60-month prison sentence upon revoking his supervised
release. On appeal, he contends his sentence to the statutory
maximum is procedurally and plainly unreasonable because it was
based predominantly on sentencing factors in 18 U.S.C.
§ 3553(a)(2)(A) (2012) that are not applicable to revocation
sentences under 18 U.S.C. § 3583(e) (2012). We affirm.
We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
“plainly unreasonable.” United States v. Padgett, 788 F.3d 370,
373 (4th Cir.) (citing United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006)), cert. denied, 136 S. Ct. 494 (2015). Only
if the revocation sentence is unreasonable must we assess
whether it is plainly so. Id. (citing United States v. Moulden,
478 F.3d 652, 656 (4th Cir. 2007)). “In determining whether a
revocation sentence is unreasonable,” we are informed by the
same procedural and substantive considerations that guide our
review of original sentences but “we strike a more deferential
appellate posture.” Id. (citations and internal quotation marks
omitted).
A district court “retains broad discretion to . . . impose
a term of imprisonment up to the statutory maximum.” Id.
(citations and internal quotation marks omitted). In exercising
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such 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).” United States v. Webb,
738 F.3d 638, 641 (4th Cir. 2013). “Chapter Seven instructs
that, in fashioning a revocation sentence, ‘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.’”
Id. (quoting U.S. Sentencing Guidelines Manual ch. 7, pt.
A(3)(b) (2012)).
“Although § 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.” Id. Moreover, “the factors
listed in § 3553(a)(2)(A) are intertwined with the factors
courts are expressly authorized to consider under § 3583(e).”
Id. (citations omitted). Thus, “although a district court may
not impose a revocation sentence based predominately on the
seriousness of the releasee’s violation or the need for the
sentence to promote respect for the law and provide just
punishment . . . mere reference to such considerations does not
render a revocation sentence procedurally unreasonable when
those factors are relevant to, and considered in conjunction
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with, the enumerated § 3553(a) factors.” Id. at 642 (citation
omitted); see USSG ch. 7, pt. A(3)(B) (punishing new criminal
conduct is not “the primary goal of a revocation sentence,” but
the “nature of the conduct leading to the revocation [is]
considered in measuring the extent of the breach of trust”).
Because Butts did not challenge the district court’s
consideration of factors omitted from § 3583(e) in the district
court, our review is for plain error. See United States v.
Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015); Webb, 738
F.3d at 640. Thus, he must show (1) error; (2) that is clear or
obvious; and (3) that the error affected his substantial rights.
Webb, 738 F.3d at 640. To satisfy the third prong, he must show
“that he would have received a lower sentence had the district
court not committed the errors he alleges.” Id. at 643 (citing
United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010)).
“Even when this burden is met, we retain discretion whether to
recognize the error and will deny relief unless the district
court’s error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. at 641
(citations and internal quotation marks omitted).
We have reviewed the record and conclude that Butts fails
to make this showing. First, we do not agree that the district
court based his sentence predominantly on the omitted factors in
§ 3553(a)(2)(A). Even if the district court did plainly err,
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Butts fails to show that he would have received a lower sentence
if the district court had not committed the alleged error.
Accordingly, we affirm the district court’s order. 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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