United States v. Austin Webb, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4856

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AUSTIN ROMAINE WEBB, JR., a/k/a Luck,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. Norman K. Moon,

Senior District Judge. (3:06-cr-00004-NKM-1)

Argued: September 20, 2013 Decided: December 19, 2013

Before DAVIS, KEENAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion,

in which Judge Davis and Judge Keenan joined.

ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett

Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,

Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal

Public Defender, Roanoke, Virginia, Frederick T. Heblich,

Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Charlottesville, Virginia, for Appellant. Timothy J.

Heaphy, United States Attorney, Roanoke, Virginia, Ronald M.

Huber, Assistant United States Attorney, Alyssa Kuhn, Third Year

Law Intern, OFFICE OF THE UNITED STATES ATTORNEY,

Charlottesville, Virginia, for Appellee.

FLOYD, Circuit Judge:

Austin Romaine Webb, Jr., appeals his thirty-two month

sentence imposed following the revocation of his supervised

release, claiming that his sentence is plainly unreasonable

because the district court considered statutorily prohibited

factors in formulating his revocation sentence. Finding no

reversible error, we affirm.

I.

Webb pled guilty in 2006 to conspiracy to possess with

intent to distribute fifty grams or more of cocaine base and a

detectable amount of cocaine hydrochloride, in violation of

21 U.S.C. § 846, and was sentenced to an eighty-month term of

imprisonment followed by a five-year term of supervised release.

Benefitting from a sixteen-month reduction to his sentence

pursuant to Amendment 706 to the United States Sentencing

Guidelines (U.S.S.G.), Webb began serving his supervised release

term in August 2010.

Less than one year into his term of supervised release,

Webb was arrested in New York City on charges for criminal

possession of marijuana and unlawful possession of marijuana.

That same month, he tested positive for use of marijuana. In

September 2011, the district court found that Webb had committed

a Grade C violation of his supervised release and granted the

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government’s request to take the matter under advisement for six

months.

In September and December 2011, Jefferson Area Drug

Enforcement Task Force detectives conducted two controlled

purchases of cocaine base from Webb in Charlottesville,

Virginia. After the second controlled purchase, officers

arrested Webb and confiscated 12.1 grams of cocaine base from

his person. In January 2012, a federal grand jury indicted Webb

for conspiracy to distribute cocaine base, distribution of

cocaine base, and possession of cocaine base with intent to

distribute, in violation of 21 U.S.C. §§ 841(b)(1)(C), 846. He

subsequently pled guilty to conspiracy to distribute twenty-

eight or more grams of crack cocaine.

Webb appeared for sentencing and for a hearing on the

supervised release violation in October 2012. With respect to

the conspiracy conviction, the district court granted the

government’s motion for a downward departure based upon Webb’s

substantial assistance and sentenced him to eighty months’

imprisonment followed by eight years of supervised release. As

to the supervised release violation, the government pressed the

court for a “significant sentence” at the high end of Webb’s

Guidelines range, noting that Webb previously had benefitted

from a U.S.S.G. § 5K1.1 motion but that he was caught selling

drugs thirteen months later. Webb’s counsel conceded that the

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violation was “troubling,” given that it occurred shortly after

Webb was released, but requested that the court impose a

sentence near the low end of the Guidelines range.

Concluding that Webb’s conduct constituted a Grade A

violation, the court revoked the term of supervision and

sentenced Webb to thirty-two months’ imprisonment to run

consecutively to any other federal or state sentence. In doing

so, the court explained the rationale for its sentence as

follows:

After considering the evidence and argument from the

government and the defendant, the specific sentence

recommended includes the nature and circumstances, the

seriousness of the violation, provides just

punishment, reveals the history and characteristics of

the defendant, promotes respect for the conditions of

supervision imposed by the court, and affords adequate

deterrence to noncompliant behavior, and provides

protection from the public from further crimes of the

defendant.

The district court also noted that the thirty-two month sentence

was appropriate in light of Webb’s continued pattern of

committing drug offenses.

Webb did not object to the district court’s revocation

sentence. He now appeals, contending that the thirty-two month

sentence imposed upon revocation of his supervised release is

plainly unreasonable.

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II.

A.

A district court has broad discretion when imposing a

sentence upon revocation of supervised release. United States

v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will affirm

a revocation sentence if it is within the statutory maximum and

is not “plainly unreasonable.” United States v. Crudup, 461

F.3d 433, 438 (4th Cir. 2006). In making this determination, we

first consider whether the sentence imposed is procedurally or

substantively unreasonable. Id. at 438-39. Only if we find the

sentence unreasonable must we decide “whether it is ‘plainly’

so.” United States v. Moulden, 478 F.3d 652, 657 (4th Cir.

2007) (quoting Crudup, 461 F.3d at 439).

Because Webb did not raise any objection to the court’s

explanation of his sentence, we review the record below for

plain error. United States v. Hargrove, 625 F.3d 170, 183-84

(4th Cir. 2010). To establish plain error, Webb must show

(1) that the district court erred, (2) that the error is clear

or obvious, and (3) that the error affected his substantial

rights, meaning that it “affected the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 732-

34 (1993). 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,

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integrity or public reputation of judicial proceedings.” Id. at

736 (alteration in original) (quoting United States v. Young,

470 U.S. 1, 15 (1985)) (internal quotation marks omitted).

B.

In exercising its discretion to impose a sentence of

imprisonment upon revocation of a defendant’s supervised

release, a 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). 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.” U.S.

Sentencing Guidelines Manual ch. 7, pt. A(3)(b) (2012). Section

3583(e), the statute governing supervised release, further

directs courts to consider factors enumerated in “section

3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),

(a)(6), and (a)(7)” * when imposing a sentence upon revocation of

*

The cross-referenced § 3553(a) factors include (1) “the

nature and circumstances of the offense and the history and

characteristics of the defendant”; (2) “the need for the

sentence imposed . . . to afford adequate deterrence to criminal

conduct,” “to protect the public from further crimes of the

defendant,” and “to provide the defendant needed educational or

(Continued)

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supervised release. Absent from these enumerated factors is

§ 3553(a)(2)(A), which requires district courts to consider the

need for the imposed sentence “to reflect the seriousness of the

offense, to promote respect for the law, and to provide just

punishment for the offense.” Accordingly, in Crudup, we stated,

without analysis or explanation, that a district court is not

permitted to impose a revocation sentence based upon these

omitted considerations. 461 F.3d at 439.

Relying on Crudup, Webb contends that his revocation

sentence is plainly unreasonable because the district court

mentioned the § 3553(a)(2)(A) factors when announcing Webb’s

thirty-two month sentence. We disagree. 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. And, as many of our sister circuits have

recognized, the factors listed in § 3553(a)(2)(A) are

vocational training, medical care, or other correctional

treatment in the most effective manner”; (3) the sentencing

range established by the Guidelines; (4) the pertinent policy

statements of the Sentencing Commission; (5) “the need to avoid

unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct”; and

(6) “the need to provide restitution to any victims of the

offense.”

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intertwined with the factors courts are expressly authorized to

consider under § 3583(e). See, e.g., United States v. Young,

634 F.3d 233, 239 (3d Cir. 2011) (“[T]he ‘nature and

circumstances of the offense,’ a mandatory revocation

consideration under § 3583(e), necessarily encompasses the

seriousness of the violation of supervised release.”); United

States v. Lewis, 498 F.3d 393, 399-400 (6th Cir. 2007) (“[T]he

three considerations in § 3553(a)(2)(A), namely the need ‘to

reflect the seriousness of the offense,’ ‘to promote respect for

the law,’ and ‘to provide just punishment for the offense,’ are

essentially redundant with matters courts are already permitted

to take into consideration when imposing sentences for violation

of supervised release.”); United States v. Williams, 443 F.3d

35, 47-48 (2d Cir. 2006) (“[Section] 3583(e) cannot reasonably

be interpreted to exclude consideration of the seriousness of

the releasee’s violation, given the other factors that must be

considered.”).

A district court’s meaningful consideration of the

enumerated § 3553(a) factors when imposing a revocation sentence

typically will include analysis that furthers the purposes of

post-revocation incarceration. Given that the § 3553(a)(2)(A)

factors are closely related to the factors district courts are

instructed to consider under § 3583(e), we fail to see how a

district court’s reference to the § 3553(a)(2)(A) sentencing

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considerations, without more, would automatically render a

revocation sentence unreasonable. Accordingly, 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, we conclude that mere reference to such

considerations does not render a revocation sentence

procedurally unreasonable when those factors are relevant to,

and considered in conjunction with, the enumerated § 3553(a)

factors. See United States v. Miqbel, 444 F.3d 1173, 1182 (9th

Cir. 2006).

In determining the sentence to impose upon revocation of

Webb’s supervised release, the district court noted its

consideration of the Chapter Seven policy statements and

discussed several of the enumerated § 3553(a) factors, including

the nature and circumstances of the offense, the history and

characteristics of the defendant, the need for the sentence to

afford adequate deterrence to noncompliant behavior, and the

need for the sentence to provide protection to the public from

Webb’s criminal behavior. Although the district court

referenced the three omitted § 3553(a) factors, namely the

seriousness of Webb’s offense, the need to provide just

punishment, and the need to promote respect for the conditions

of supervision, we conclude that those factors were related to

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other considerations permissibly relied upon by the district

court. Indeed, the district court’s references to the

seriousness of Webb’s violation and imposing just punishment

were made in connection with its consideration of the nature and

circumstances of Webb’s offense as well as its determination

that Webb’s sentence would adequately deter violations of

supervised release, both of which are approved factors under

§ 3583(e). Further, the court’s reference to promoting respect

for the conditions of supervision was germane to Webb’s

individual history and the need to sanction his breach of the

court’s trust, considerations relevant to the Chapter Seven

policy statements. Because the district court appropriately

focused its discussion on the Chapter Seven policy statements

and based Webb’s revocation sentence on factors listed in

§ 3583(e), we discern no error, much less plain error, in the

district court’s consideration of related factors.

Finally, assuming arguendo Webb were able to demonstrate

the district court committed plain error, we nevertheless

conclude he is unable to show that the court’s error affected

his substantial rights by influencing the outcome of the

revocation hearing. Webb’s thirty-two month revocation sentence

is near the bottom of his Chapter Seven range of thirty to

thirty-seven months and is presumed reasonable. United States

v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Webb has not

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argued that he would have received a lower sentence had the

district court not committed the errors he alleges, and

therefore, he has failed to justify a remand for resentencing.

United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010)

(explaining that to satisfy the third element of plain error

review “in the sentencing context, the defendant must show that

he would have received a lower sentence had the error not

occurred”). Accordingly, he has failed to satisfy the third

prong of plain error review.

III.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

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