                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4797


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ANTHONY DAVIS,

                    Defendant - Appellant.



Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Thomas E. Johnston, Chief District Judge. (2:09-cr-00125-1)


Submitted: May 24, 2018                                           Decided: May 29, 2018


Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing
Specialist, Lex A. Coleman, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B.
Stuart, United States Attorney, Eumi L. Choi, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Anthony Davis appeals the 24-month sentence imposed after the district court

revoked his supervised release. Davis asserts that his sentence is: (1) procedurally

unreasonable because it was not based on appropriate sentencing considerations but,

rather, was the fulfillment of the district court’s threat during a previous revocation

hearing that, if Davis again violated his supervised release, his sentence would be “maxed

out” and (2) substantively unreasonable because it does not serve the purpose of

supervised release, which according to Davis, is easing a defendant’s transition back into

the community. Finding no error, we affirm.

       “A district court has broad, though not unlimited, discretion in fashioning a

sentence upon revocation of a defendant’s term of supervised release.” United States v.

Slappy, 872 F.3d 202, 206 (4th Cir. 2017). Accordingly, when we review a revocation

sentence, 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).

“We will affirm a revocation sentence if it is within the statutory maximum and is not

‘plainly unreasonable.’” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013)

(quoting United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006)). And even if a

revocation sentence is plainly unreasonable, we will still affirm if we find that any errors

are harmless. See United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).

       To consider whether a revocation sentence is plainly unreasonable, we first must

determine whether the sentence is procedurally or substantively unreasonable. See id. at

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546. In making this determination, “we follow generally the procedural and substantive

considerations that we employ in our review of original sentences, . . . with some

necessary modifications to take into account the unique nature of supervised release

revocation sentences.” Crudup, 461 F.3d at 438-39. Thus, a revocation sentence is

procedurally reasonable if the district court adequately explains the chosen sentence after

considering the Sentencing Guidelines’ Chapter Seven policy statements and the

applicable statutory sentencing factors. See Thompson, 595 F.3d at 546-47. A revocation

sentence is substantively reasonable if the court “sufficiently state[s] a proper basis for its

conclusion that” the defendant should receive the sentence imposed. Crudup, 461 F.3d at

440. “Only if we find a revocation sentence unreasonable do we consider whether it is

‘plainly’ so, relying on the definition of ‘plain’ used in our ‘plain’ error analysis[,]” i.e.,

“clear” or “obvious.” Slappy, 872 F.3d at 208 (internal quotation marks and alterations

omitted).

       At Davis’ previous revocation hearing, the district court explained its desire to

motivate Davis to comply with his new supervised release terms by sentencing Davis to a

“slightly lesser sentence,” thereby preserving the ability to provide a more serious

sentence should Davis violate the new supervised release terms. In so doing, the district

court warned Davis that he—like other defendants who appeared on second revocation

petitions—would     “almost    certainly”   receive    the   maximum      sentence   allowed.

Accordingly, in an effort to motivate Davis to comply with his supervised release terms,

the district court imposed a sentence slightly below the applicable policy statement range.



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      Prior to imposing the 24-month sentence at issue here, the district court recalled its

previous admonition and, after considering the governing policy statements and the

relevant statutory sentencing factors, Davis’ previous supervised release violations, his

refusal to follow through with mental health and drug treatment, and the 36-month

statutory maximum available to it, decided that a 24-month sentence was appropriate.

We conclude that the district court adequately explained the 24-month sentence after

considering the relevant policy statements and statutory sentencing factors and, thus,

reject Davis’ assigned procedural error. See Thompson, 595 F.3d at 546-47.

      Further, because the district court considered allowable sentencing factors and

sufficiently stated a proper basis for the 24-month sentence, we conclude the sentence is

substantively reasonable. We are unpersuaded by Davis’ argument that his sentence is

substantively unreasonable because the sentence served the purpose of complying with

the court’s previous admonition, rather than the purpose of supervised release. See, e.g.,

United States v. Keatings, 787 F.3d 1197, 1204 (8th Cir. 2015) (holding that the district

court’s threat of a 10-year sentence for probation violation did not render the sentence

substantively unreasonable because the court properly considered the statutory sentencing

factors before imposing sentence, and an appellate court owes substantial deference to a

district court’s revocation sentence). Contrary to Davis’ assertion, the relevant policy

statement provides that, “at revocation the court should sanction primarily the

defendant’s breach of trust,” and consider “to a limited degree” the defendant’s criminal

history and the seriousness of the supervised release violations. See U.S. Sentencing

Guidelines Manual ch.7, pt. A, intro. cmt. 3(b) (2017). We thus find no error in the

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district court’s selection of a 24-month sentence based, in part, on Davis’ refusal to

comply with the terms of his supervised release.

      Given “the broad discretion that a district court has to revoke supervised release

and impose a term of imprisonment up to the statutory maximum, we cannot say that the

district court’s imposition of [the sentence below] the statutory maximum . . . is

unreasonable.” Crudup, 461 F.3d at 440. Because we conclude that Davis’ sentence is

not unreasonable, “it necessarily follows that his sentence is not plainly unreasonable.”

Id. We thus affirm the district court’s judgment. 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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