                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4961


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MICHAEL SMITH,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:95-cr-00057-F-4)


Submitted:   April 12, 2010                 Decided:   April 22, 2010


Before WILKINSON, SHEDD, and DAVIS, 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Affirmed by unpublished per curiam opinion.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.    George E. B. Holding, United States Attorney,
Anne M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Michael         Smith    appeals     the     district    court’s      order

revoking his supervised release and sentencing him to twenty-six

months in prison.           We affirm.



                                            I

            Smith was convicted of a drug offense in 1995 and was

sentenced to ninety months in prison, to be followed by a five-

year term of supervised release.                      Smith’s term of supervised

release commenced in December 2001.                    In 2005, his release was

revoked.    He was sentenced to twenty-four months in prison, to

be    followed   by    thirty-six      months     of    supervised     release.      In

2007, Smith’s release was again revoked, and he was sentenced to

ten months in prison, to be followed by twenty-six months of

supervised release.

            Smith’s most recent term of release began in January

2008.     In July 2009, his probation officer moved to revoke his

release based on three violations.                     Smith admitted two of the

violations.        The district court heard evidence on the third,

which charged criminal conduct.                 The court concluded that Smith

had    committed      the    three    violations       as   charged.      The     court

revoked    release      and     sentenced       him    to   twenty-six    months    in

prison.    In sentencing Smith, the court stated:



                                            2
      The court has considered the policy statements on
      revocations contained in Chapter Seven of [the] U.S.
      Sentencing Guidelines.

      Smith’s performance under the most recent term of
      supervision has been marginal at best. The motion for
      revocation clearly documents a history of substantial
      noncompliance and frequent violation conduct.

      Smith has historically shown some promise early in the
      supervision process, but he inevitably reverts to
      behavior   indicative  of  an   unmotivated,  careless
      lifestyle.

      By his very nature, he is a reckless and impulsive
      individual. This behavior coupled with the likelihood
      of drug and/or alcohol abuse presents serious danger
      to the community.

      In view thereof, a sentence of twenty-six months is
      appropriate. . . . This was a Grade B violation,
      criminal history category II, with a custody range of
      six to twelve months. The court has departed upwardly
      for the reasons heretofore indicated inasmuch as the
      sentence will allow the defendant to receive intensive
      substance abuse treatment while incarcerated, which
      the court recommends.



                                               II

               We will affirm a sentence imposed after revocation of

supervised      release      if    it    is    within    the       applicable      statutory

maximum and not plainly unreasonable.                        United States v. Crudup,

461   F.3d     433,    439-40      (4th    Cir.      2006).         We   first     determine

whether the sentence is unreasonable, following generally the

model    for    reviewing        original      sentences      set    forth    in    Gall   v.

United    States,          552    U.S.    38       (2007),     “with     some      necessary

modifications         to    take    into       account       the     unique      nature    of


                                               3
supervised release revocation sentences.”                        Crudup, 461 F.3d at

438-39.

              A    sentence      imposed      upon     revocation        of   release       is

procedurally       reasonable      if     the     district      court    considered         the

Chapter     Seven       policy   statements        and    the   18   U.S.C.       § 3553(a)

(2006) factors that it is permitted to consider.                           See 18 U.S.C.

§ 3583(e); Crudup, 461 F.3d at 438-40.                       The relevant § 3553(a)

factors are:         “the nature and circumstances of the offense and

the history and characteristics of the defendant,” § 3553(a)(1),

and the need for the sentence “to afford adequate deterrence to

criminal conduct, . . . protect the public from further crimes

of the defendant, . . . [and] provide the defendant with needed

educational        or    vocational      training,        medical       care,   or     other

correctional       treatment      in    the     most     effective      manner.    .    .   .”

§ 3553(a)(2)(B)-(D).

              A    sentence      imposed      upon     revocation        of   release       is

substantively reasonable if the district court stated a proper

basis   for       concluding     that     the     defendant      should       receive       the

sentence imposed, up to the statutory maximum.                          Crudup, 461 F.3d

at   440.          Only     if    we    find      a      sentence       procedurally         or

substantively unreasonable will we consider whether the sentence

is plainly unreasonable.            Id.




                                              4
                                    III

           We conclude that Smith’s sentence, which falls within

the   statutory   maximum,   is   not     procedurally   or    substantively

unreasonable.      The   district   court     considered      the   Chapter   7

policy statements and relevant § 3553(a) factors and adequately

explained its reasons for the sentence.

           We therefore affirm.          We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                     AFFIRMED




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