United States v. Sieel Allen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4700
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SIEEL ALLEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00249-F-4)
Submitted: April 13, 2015 Decided: May 20, 2015
Before AGEE and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
First 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Unpublished opinions are not binding precedent in this circuit.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:
Sieel Allen appeals the district court’s judgment revoking
his supervised release and sentencing him to 24 months’
imprisonment, above the Sentencing Guidelines’ policy statement
range. Allen contends that his sentence is plainly
unreasonable. Specifically, he claims his sentence is
procedurally unreasonable because the court relied on an 18
U.S.C. § 3553(a) (2012) sentencing factor not enumerated in the
list of factors in 18 U.S.C. § 3853(e) (2012) to be considered
when imposing a revocation sentence. Allen also claims that his
sentence is substantively unreasonable because the court based
its decision, in part, on the belief that the sentence was
necessary to protect the public from his further criminal
conduct, for which no support existed in the record. We affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). “We will
affirm a revocation sentence if it is within the statutory
maximum and is not ‘plainly unreasonable.’” Id. (quoting United
States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006)). In
determining whether a revocation sentence is plainly
unreasonable, we first assess the sentence for unreasonableness,
following the procedural and substantive considerations at issue
2
during our review of original sentences. Crudup, 461 F.3d at
438-39. In this initial inquiry, we “take[] a more deferential
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). Only if a sentence is
procedurally or substantively unreasonable will “we . . . then
decide whether the sentence is plainly unreasonable.” Crudup,
461 F.3d at 439.
A revocation sentence is procedurally reasonable if the
district court properly calculates the advisory policy statement
range and adequately explains the sentence after considering
that range and the applicable § 3553(a) factors. 18 U.S.C.
§ 3583(e); U.S. Sentencing Guidelines Manual § 7B1.4, p.s.
(2013) (revocation table); Crudup, 461 F.3d at 439. A
revocation sentence is substantively reasonable if the district
court states a proper basis for concluding that the defendant
should receive the sentence imposed, up to the statutory
maximum. Crudup, 461 F.3d at 440.
We conclude that Allen’s challenge to the procedural
reasonableness of his sentence lacks merit. Although the
district court referenced an unenumerated § 3553(a) factor, it
does not appear from the record that the court primarily
3
considered or relied on it when determining Allen’s sentence.
Moreover, to the extent the court considered the unenumerated
factor, we conclude that it was “relevant to, and considered in
conjunction with, the enumerated § 3553(a) factors” and
therefore did not render Allen’s sentence procedurally
unreasonable. Webb, 738 F.3d at 642.
We likewise conclude that Allen’s challenge to the
substantive reasonableness of his sentence lacks merit.
Although the district court mentioned its obligation to consider
whether the revocation sentence it imposed was needed to protect
the public from further crime by Allen, 18 U.S.C.
§ 3553(a)(2)(C), it does not appear from the record that the
sentence the court imposed was based on this factor. Instead,
the court expressly relied on Allen’s blatant drug use, his
unwillingness to take responsibility, and his failure to avail
himself of opportunities designed to address his drug problem,
all of which Allen concedes are proper bases for imposing a
sentence above the policy statement range.
Because we conclude that Allen’s revocation sentence is
neither procedurally nor substantively unreasonable, it is
unnecessary to determine whether it was plainly unreasonable.
Crudup, 461 F.3d at 439. Accordingly, we affirm the judgment of
the district court. We dispense with oral argument because the
4
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
5