                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     ______________

                                       No. 18-3792


                            UNITED STATES OF AMERICA


                                             v.

                                   STEVEN M. DYKE,
                                              Appellant


                                     ______________

               APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                      (D.C. Crim Action No. 1-06-cr-00155-001)
                        District Judge: Honorable Yvette Kane
                                   ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 10, 2019
                                  ______________

           Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges.

                          (Opinion Filed: September 27, 2019)
                                   ______________

                                        OPINION*
                                     ______________



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Appellant Steven Dyke appeals his judgment of sentence following his third

violation of the terms of his supervised release. Dyke contends that the District Court

imposed an unreasonable sentence of twelve months, three months above the uppermost

range recommended under the U.S. Sentencing Guidelines. Because we find that the

upward departure was both procedurally and substantively reasonable, we will affirm.

                     I.      Factual Background/Procedural History

       In 2006, Dyke was charged with, and pled guilty to, possession of child

pornography in violation of 18 U.S.C. § 2252A. The probation office determined that

Dyke had a criminal history category I and that his total offense level was 29, which

carried a guidelines calculation of 87–108 months. The District Court sentenced Dyke to

87 months’ imprisonment and a life term of supervised release. The District Court also

imposed conditions of his supervised release which included “participat[ing] in a sex

offender treatment program”; “comply[ing] with all requirements of the treatment

provider”; “not associat[ing] with children under the age of eighteen except in the

presence of an adult” approved by his probation officer; “comply[ing] with the

registration requirements of the sex offender registry;” and, “not us[ing] a computer with

access to any ‘on-line computer service’ without prior written approval of the probation

officer.” App. 44.

       On September 17, 2013, Dyke violated the conditions of his supervised release.

Dyke was discharged from a sex offender treatment program after failing to comply with
                                             2
all of the program’s requirements. He also engaged in prohibited contact with minors

and used a computer with internet access without prior written approval from his

probation officer. The District Court sentenced him to 6 months’ imprisonment with 20

years’ supervised release.

       A year later, Dyke once again violated the conditions of his supervised release by

failing to successfully complete sex offender treatment, having unauthorized contact with

a minor, and accessing a computer with internet access. The District Court sentenced

Dyke to 9 months’ imprisonment followed by a 20-year term of supervised release.

       On November 9, 2018, Dyke again violated the conditions of his supervised

release for identical reasons he had on the two prior violations—unauthorized interaction

with minors, failure to complete sex offender treatment, and unauthorized use of a

computer with internet access. A month later, Dyke admitted to these violations at a

sentencing hearing before the District Court. At that time, the probation office

recommended a sentence of 3–9 months, based on the Revocation Table of the

Guidelines. Additionally, the probation office noted, in accordance with Application

Note 3 of U.S.S.G. § 7B1.4, Dyke’s violation was associated with a high risk of new

felonious conduct, in which case, “an upward departure may be warranted.” Appellee’s

Br. at 6 (internal quotations omitted).

       The District Court indeed upwardly varied and imposed a term of imprisonment of

12 months, “find[ing] that a sentence above the guideline range [was] appropriate under

all of the circumstances.” App. 85. The District Court imposed this sentence “[p]ursuant
                                             3
to the Sentencing Reform Act of 1984 and after having considered the factors listed in 18,

United States Code, Section 3553.” Id. After the imposition of sentence, the Court asked

if there was anything further for the record, to which Dyke’s counsel replied that there

was nothing further. This timely appeal followed.

                                      II.    Discussion1

       This Court exercises plenary review of an interpretation of the Sentencing

Guidelines and reviews findings of facts for clear error. United States v. Grier, 475 F.3d

556, 570 (3d Cir. 2007) (en banc). A finding of fact is clearly erroneous when, although

there is evidence to support it, the reviewing Court “on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Id. (internal quotation

mark omitted).

       Our appellate review proceeds in two stages: first, we must “ensure that the district

court committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51

(2007). This includes “failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines range.”

Id.; United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). If the District


       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction over this matter under 28 U.S.C. § 1291. Additionally, this Court has
jurisdiction to review the sentence imposed under the Sentencing Reform Act of 1984
under 18 U.S.C. § 3742(a).
                                              4
Court’s process was correct, “we then, at stage two, consider its substantive

reasonableness.” Tomko, 562 F.3d at 567 (internal quotations and citations omitted).

“Our substantive review requires us not to focus on one or two factors, but on the totality

of the circumstances.” Id. “At both stages of our review, the party challenging the

sentence has the burden of demonstrating unreasonableness.” Id. “Where, as here, a

district court decides to vary from the Guidelines’ recommendations, we ‘must give due

deference to the district court's decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.’” Id. at 561 (quoting Gall, 552 U.S. at 51).

       Dyke brings both a procedural and a substantive challenge to his imposed

sentence, asserting that his sentence was issued without calculation or consideration of

the Guidelines range and that the sentence was unreasonable. Procedurally, he argues

that the District Court did not calculate his sentence under the recommended Guidelines

range, nor did it give this range due consideration. United States v. Flores-Mejia

establishes that in order to preserve a procedural objection to the District Court’s failure

to meaningfully consider a defendant’s sentencing arguments for appeal, and avert plain

error review, the defendant must object after the sentence is pronounced. 759 F.3d 253,

255 (3d Cir. 2014) (en banc). Dyke’s counsel did not preserve a procedural objection

after the sentence was pronounced, as he declined any further substantive comment on

the record following the sentence.

       Therefore, we review Dyke’s procedural argument for plain error. Rule 52(b) of

the Federal Rules of Criminal Procedure raises the standard to obtain relief: “A plain
                                              5
error that seriously affects substantial rights may be considered even though it was not

brought to the court’s attention.” An error is plain if it is “clear” or “obvious,” “affects

substantial rights,” and “affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (quoting United

States v. Olano, 507 U.S. 725, 732, 734, 736 (1993)). The burden is on the Appellant,

Dyke, to establish plain error. Olano, 507 U.S. at 734–35.

       Simply put, Dyke’s assertions are incorrect, and thus his procedural challenge

fails. The District Court did not fail to calculate Dyke’s Guidelines range. Pursuant to

U.S.S.G. § 7B1.4(a), the Court calculated his range as 3–9 months. Also, the Court did

not fail to explain its departure from the Guidelines range. It acknowledged the

recommended range and stated that given Dyke’s “prior two revocations” and that he has

been assessed as “oppositional, avoiding treatment, and really minimizing his conduct

with children that clearly violate his conditions of supervision,” “a sentence above the

guidelines range is appropriate under all of the circumstances.” App. 85.

       Finally, the District Court’s upward departure was substantively reasonable. This

Court must evaluate whether “no reasonable sentencing court would have imposed the

same sentence on that particular defendant for the reasons the district court provided” to

consider Dyke’s sentence substantively unreasonable. Tomko, 562 F.3d at 568. Dyke

asserts that the District Court did not “consider the nature or seriousness of Mr. Dyke’s

prior violations,” but this too is false, and the underlying facts actually bolster the District

Court’s upward departure. Appellant’s Br. at 9. The District Court noted that this was
                                               6
the third time Dyke was before it for violating the terms of his supervised release and that

he continues to violate the same terms—prohibited contact with minors and complying

with treatment requirements. Application Note 3 of U.S.S.G. § 7B1.42 notes that “an

upward departure may be warranted” where a “violation . . . is associated with a high risk

of new felonious conduct.” Dyke’s repeated offenses involving contact with minors

where his original offense was possession of child pornography support this departure.

       In upwardly departing from the Guidelines range by three months, the District

Court also noted that it “considered the factors listed in 18, United States Code, Section

3553.” App. 85. This, in addition to the fact that this was the fourth time Dyke was

before Judge Kane, who was thoroughly familiar with Dyke’s case, further supports our

conclusion that Dyke’s sentence was substantively reasonable given the totality of the

circumstances.

                                      III.   Conclusion

       In conclusion, the District Court’s sentence was both procedurally and

substantively reasonable. The District Court did not commit plain error in

acknowledging Dyke’s Guidelines range, considering his § 3553(a) factors, and

explaining its departure from the Guidelines range. Substantively, a three-month upward



       2
        Perhaps even more illuminating is that in whole, Note 3 states: “In the case of a
Grade C violation that is associated with a high risk of new felonious conduct (e.g., a
defendant, under supervision for conviction of criminal sexual abuse, violates the
condition that the defendant not associate with children by loitering near a schoolyard),
an upward departure may be warranted.” U.S.S.G. 7B1.4, Application n.3.
                                             7
departure for a three-time repeat offender was reasonable. For the foregoing reasons, we

will affirm.




                                           8
