                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4144


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JOSHUA PAUL CAUDILL, a/k/a Josh Caudill,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:05-cr-00135-JTC-1)


Argued:   March 23, 2012                    Decided:   May 2, 2012


Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Davis and Senior Judge Kiser joined.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.        Philip
Henry Wright, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.     ON BRIEF: Mary Lou Newberger,
Federal Public Defender, David R. Bungard, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. R. Booth Goodwin II,
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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DIAZ, Circuit Judge:

       After    serving       a     federal    prison     sentence      following     his

conviction for a drug offense, Joshua Paul Caudill committed

numerous     violations        of    the    terms    of   his   supervised      release.

Consequently,       the      district      court    revoked     Caudill’s    supervised

release and imposed a sentence of twenty-one months in prison,

followed       by   a   period       of    thirty-nine        months    of   supervised

release.       Caudill, who did not object before the district court,

now contends that the sentence was plainly unreasonable because

the    court    impermissibly          focused      on    the   seriousness     of    the

offense leading to revocation.                     Reviewing for plain error, we

affirm.



                                              I.

       Caudill pled guilty to possession with intent to distribute

crack cocaine, in violation of 21 U.S.C. § 841(a)(1), before the

U.S. District Court for the Southern District of West Virginia.

The court sentenced Caudill to sixty months in prison, followed

by    four   years      of    supervised      release.          In   addition    to   the

standard     conditions        of    supervision--including            requirements    to

not commit any other federal or state crime, refrain from the

excessive use of alcohol or drugs, and notify probation within

seventy-two hours of any arrest--the court imposed a special



                                              3
condition,        requiring      Caudill       to    participate               in   an     in-patient

substance abuse program.

       Caudill began violating the terms of his release almost

immediately.        Within six months of the start of his supervision,

Caudill’s     probation       officer          filed       a    Petition         for      Warrant    or

Summons for Offender Under Supervision, recommending revocation

of   Caudill’s         supervised      release.                The    petition         listed      five

suspected     violations,        including           four       positive         drug      tests    for

marijuana, a state conviction for driving under the influence,

failure to refrain from the excessive use of alcohol, failure to

provide      timely     notice    of      an    arrest,             and    discharge        from    the

community confinement center for fighting.

       The    district     court       held      a     revocation              hearing      at   which

Caudill      admitted      the    violations           contained            in      the    petition.

Caudill requested, however, that the district court hold his

revocation in abeyance and modify the conditions of release to

require      an    additional       six    months              of    community         confinement.

Caudill acknowledged that if he again violated the terms of his

release or was discharged from the community confinement center,

“the   court      is    likely    to    impose         a       very       significant        term   of

imprisonment on him.”            J.A. 33.

       In    response,     the     court        stated          that      it     had      anticipated

imposing a prison sentence of six to twelve months based on the

violations and the range of imprisonment prescribed by the U.S.

                                                4
Sentencing Guidelines.           The court noted that it was “disturbed”

that the violations occurred so soon following Caudill’s release

and was “dubious about whether or not [Caudill] really [had] any

desire to conform [his] conduct to the requirements of society”

or   the   community      confinement      center.        Id.   34.      The    court

nevertheless      agreed      with      Caudill’s       request,      holding     the

revocation in abeyance and ordering six additional months of

community confinement.           The court warned Caudill, however, that

“this is the last chance you have.”              Id. 35.

       Within    six    months    of    the    hearing,      Caudill’s     probation

officer submitted a second petition recommending revocation of

Caudill’s supervised release.             The petition restated the prior

violations and added that Caudill had been discharged from the

community confinement center for multiple rules violations.                        In

an amendment to the petition, the probation officer described an

additional violation, alleging that Caudill participated in a

transaction involving drugs and a stolen firearm.

       At a second revocation hearing, Caudill admitted to the

rules violations at the community confinement center--including

failure to complete release forms and possession of contraband

in the form of a cell phone, rolling papers, and a lighter--but

contested the merits of the decision to discharge him.                      Caudill

also   challenged       the   violation       related   to    the   drug    and   gun

offense.        The    government      presented    evidence     to   support     the

                                          5
violations, including testimony from several witnesses involved

in      the     drug       and       firearm        transaction          and     subsequent

investigation.            The evidence showed that Caudill sold a stolen

firearm on behalf of an associate in exchange for $400 worth of

OxyContin pills.            Caudill also provided drugs to facilitate a

drug deal between the same individual and customers, who turned

out to include a confidential informant and an undercover police

officer.

        The district court found by a preponderance of the evidence

that    Caudill     had     committed         the   additional         supervised      release

violations.         The court concluded that Caudill’s distribution of

OxyContin       pills,     a    Grade     A    violation,        was    the    most    serious

offense       and   calculated       an   advisory         range    of   imprisonment         of

fifteen       to    twenty-one        months.          Neither         Caudill        nor   the

government objected to the court’s factual findings, and both

sides    agreed     with       the   guidelines       calculation.             Caudill      then

argued for a sentence within the guidelines range.                             In an effort

to   persuade       the    court     to   allow      him    to     self-report,        Caudill

described several mitigating factors, including his compliance

with bond requirements, recent work history, and the birth of

his son.

       The court sentenced Caudill to twenty-one months in prison,

a sentence at the high end of the guidelines range, followed by



                                                6
a   period   of    thirty-nine    months       of    supervised   release.     When

announcing its sentence, the court began as follows:

      [I]n view of the seriousness of the charges in this
      matter, not only those that the court earlier found,
      but these more recent ones that have been more grave
      indeed than those that the court had originally found,
      it seems to me that it is appropriate to sentence you
      substantially, and although I believe that a sentence
      within   the  suggested   range  under  the   advisory
      guidelines is appropriate, I also believe it ought to
      be at the top of that range.

Id. 213.     The court also took into account “the need to protect

the   public      from   continuing   criminal         conduct”   and   “to   deter

others from engaging in like conduct.”                      Id.   The court then

remanded     Caudill     into   custody    to       begin   serving   his   sentence

immediately.        Caudill did not object to the sentence but now

appeals, contending that the sentence was plainly unreasonable

because the district court improperly focused on the seriousness

of his revocation violation when imposing the sentence.



                                      II.

                                          A.

      We review a sentence imposed following the revocation of

supervised release to determine if it is “plainly unreasonable.”

United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). *                    “In


      *
       Recognizing that one panel of this court may not overrule
another, Caudill nevertheless asks us to reconsider the plainly
unreasonable standard adopted in Crudup.    We decline Caudill’s
(Continued)
                                          7
determining whether a sentence is plainly unreasonable, we first

decide whether the sentence is unreasonable,” applying the same

procedural      and    substantive           considerations         that    we    employ     in

reviewing an initial sentence.                      Id. at 438.       If the revocation

sentence is either procedurally or substantively unreasonable,

“we    must     then        decide      whether        the     sentence          is   plainly

unreasonable, relying on the definition of ‘plain’ that we use

in our ‘plain’ error analysis.”                 Id. at 439.

       Because Caudill did not object or argue for a different

sentence from the one imposed, he must satisfy the additional

requirements of plain error review.                        See United States v. Lynn,

592 F.3d 572, 578 (4th Cir. 2010) (ruling that to preserve a

sentencing      error,      a    defendant          need    only    have    argued     for    a

sentence      different      than      the    one    imposed).        To    satisfy     plain

error, Caudill must show not only that an error was made and

that   the    error    was       plain--requirements           he    must    already     meet

under Crudup--but also that the error affected his substantial

rights.        Id.     at       580.         Even    if     Caudill    satisfies        these

requirements, we retain discretion and will correct the error



invitation and instead apply the binding law of the circuit.
See United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005)
(“A decision of a panel of this court becomes the law of the
circuit and is binding on other panels unless it is overruled by
a subsequent en banc opinion of this court or a superseding
contrary decision of the Supreme Court.” (citation omitted)).



                                               8
only if it “seriously affects the fairness, integrity or public

reputation     of     judicial      proceedings.”              United      States      v.

Massenburg,     564    F.3d     337,     343    (4th     Cir.     2009)      (citation

omitted).          Caudill     is   unable      to      satisfy      any    of      these

requirements.



                                         B.

     A    district     court    has    “broad     discretion         to    revoke    its

previous sentence and impose a term of imprisonment up to the

statutory    maximum.”         Crudup,    461    F.3d     at   439    (citation       and

internal quotation marks omitted).               When selecting a revocation

sentence, the court must consider all relevant guidelines policy

statements, as well the statutory requirements outlined in 18

U.S.C. § 3583.        Id.      Section 3583 directs courts to consider

nearly all of the same factors it considers during an initial

sentencing.        See 18 U.S.C. § 3583(e) (listing the factors from

§ 3553(a)     that    a     court     should     consider       during     revocation

sentencing).       Omitted from this list, however, is “the need for

the sentence imposed to reflect the seriousness of the offense,

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

for the offense.”         Id. § 3553(a)(2)(A).

     Omission of the seriousness of the offense from the list of

factors     courts    must     consider        during     revocation        sentencing

reflects     the     U.S.    Sentencing        Commission’s       view      that     “at

                                          9
revocation 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, introductory cmt. 3(b).                    Instead, “the court with

jurisdiction over the criminal conduct leading to revocation is

the   more    appropriate      body    to   impose    punishment       for    that   new

criminal      conduct.”         Id.         Accordingly,      during         revocation

sentencing, courts should not seek to punish the defendant for

the offense leading to revocation but should instead impose a

sentence that appropriately sanctions him for his “breach of

trust.”      See id.      In this case, however, Caudill is unable to

show that the district court’s reference to the seriousness of

the offense leading to revocation constituted error--plain or

otherwise--or rendered his sentence plainly unreasonable.

      While     not    listed      as       a    factor    that       courts    should

specifically      consider        during         revocation       sentencing,        the

seriousness     of     the    offense       is   related   to     several      of    the

permissible     factors.        For     example,     courts   must     consider      the

history and characteristics of the defendant, the need to afford

adequate deterrence to criminal conduct, and the need to protect

the public from further crimes of the defendant.                             18 U.S.C.

§ 3583(e)     (listing       § 3553(a)(1),       (a)(2)(B),     and    (a)(2)(C)     as

appropriate      factors        for      consideration        during         revocation

                                            10
sentencing).           The     seriousness         of    the      offense      leading       to

revocation is closely intertwined with a defendant’s history and

characteristics and is relevant to his propensity for recidivism

and ability to integrate into the community.                              Accordingly, a

court    may    properly       consider      the       seriousness      of     the   conduct

giving    rise    to    the    revocation         in    connection      with     the   other

statutory factors.

     Here, the district court did not err by considering the

seriousness of the offense leading to revocation when sentencing

Caudill.        Caudill’s       recent    drug         and    firearm    offense       was    a

relevant part of his history and characteristics, which included

past drug use and a drug-related conviction.                            Furthermore, the

court expressly referenced the need to protect the public and

deter others when it announced Caudill’s sentence.                            In the first

hearing, the court also noted that it was disturbed that Caudill

had violated his conditions of release so soon after serving his

sentence and questioned whether he would be able to follow the

rules in the future.           Based on this record, we conclude that the

district       court’s       within-guidelines               sentence    was     a     proper

sanction    for    Caudill’s        breach    of       trust     and    was    not   plainly

unreasonable.          In the context of the two sentencing hearings,

the court’s reference to the seriousness of the offense did not

violate    § 3583(e)          and   did   not          constitute       error--plain         or

otherwise.

                                             11
      Even if the district court did commit plain error--which it

did not--Caudill is nevertheless unable to satisfy the remaining

requirements of plain error review.                   In order to show that the

error affected his substantial rights, Caudill must show that

the district court’s consideration of the conduct leading to

revocation “had a prejudicial effect on the sentence imposed.”

Lynn, 592 F.3d at 580.               After the first revocation hearing,

Caudill      knew    that      he   faced      “a    very        significant        term     of

imprisonment” if he violated the terms of his release.                              J.A. 33.

Accordingly,        in   the   second    hearing,         he    did    not    argue    for    a

below-guidelines         sentence    but     instead        “ask[ed]         the    court    to

consider     imposing      a   sentence     within        the    guideline[s]         range.”

Id. 210.      To the extent Caudill offered any mitigating factors,

his purpose was to convince the court to allow him to self-

report.       Because      Caudill    argued        for    the    sentence         ultimately

imposed, he cannot show that any error affected his substantial

rights.      See Lynn, 592 F.3d at 580.

      Finally, this is not a case in which our failure to correct

an   error    would      seriously    affect        the    fairness,         integrity,      or

public reputation of judicial proceedings.                            Caudill repeatedly

violated     the    conditions      of   his     supervised           release,      beginning

within a month of his release from prison.                            He failed numerous

drug tests, was convicted of driving under the influence, and

was twice discharged from the community confinement center for

                                            12
failure   to   comply   with   its   rules.      The   district   court   had

already given Caudill a second chance when he again violated the

terms of his release by engaging in serious criminal conduct

involving stolen guns and drugs.            On this record, we decline to

exercise our discretion to grant relief for plain error.



                                     III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                                   AFFIRMED




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