                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4267


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TIMOTHY ROMERO BENTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:98-cr-00036-RBS-1)


Argued:   May 13, 2011                       Decided:    June 16, 2011


Before TRAXLER,   Chief   Judge,   and   SHEDD   and   DUNCAN,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.     Darryl James Mitchell,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Rodolfo Cejas II, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant.     Neil   H.  MacBride,   United   States  Attorney,
Alexandria, Virginia, Emily Sowell, Third-Year Law Student,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     The district court determined that Timothy Romero Benton

violated the conditions of his supervised release, and the court

sentenced       Benton     to   36     months’     imprisonment,      the    maximum

sentence       available    for      the   Grade-C      violations    committed     by

Benton.         Benton     appeals,        challenging      the    procedural      and

substantive reasonableness of the sentence.                    We affirm.



                                           I.

     Benton was released by the Federal Bureau of Prisons on

January 15, 2010, after serving a 147-month sentence for armed

bank robbery.         Benton met with his probation officer for the

first time on January 19, 2010.                  At that meeting, the officer

instructed Benton to report back to the probation office the

next day and then to a substance abuse treatment center for an

initial assessment.             Benton called the probation officer the

next day to say that he would not be reporting to the probation

office    or    to   the   substance       abuse   center.        Benton    told   the

officer    that      he   refused     to   abide   by    the    conditions   of    his

supervised release and asked the officer to return him to court

for sentencing.           Benton did return to the probation office on

January 21, 2010, and he again stated that he would not abide by

the conditions of supervised release and asked to be returned to

court for sentencing.           The probation officer thereafter filed a

                                            3
petition    on    supervised        release,    alleging    two      violations    --

failure to participate in a treatment program and failure to

report to the probation officer.

       At the revocation hearing, the probation officer testified

that    during     their    first      meeting,    Benton       “didn’t    seem    to

understand why he was on supervised release,” and that Benton

believed “he had already done his time and he shouldn’t have to

be doing any more time.”             J.A. 34.     According to the probation

officer, Benton was “adamant” in his refusal to abide by the

conditions of supervised release.              J.A. 35.

       Benton’s testimony at the hearing reflected his disdain for

the concept of supervised release and the specific conditions

imposed    on    him.      Benton    stated    that   since     he   had   not    been

charged with any drug crimes, he should not have been ordered to

undergo a substance abuse assessment, and that he thus had “no

intentions” of reporting to the treatment center as ordered by

his probation officer.            J.A. 41.      He stated that he “d[id]n’t

trust the system” and he told the officer that he refused to

comply with the conditions because he wanted to challenge the

“legality of supervised release.”               J.A. 42.        When asked by his

attorney if he intended to comply with the terms of supervised

release, Benton stated he would comply “within reason,” if his

probation officer would work with him.                J.A. 42.        The district

court   then     asked   Benton      if   he   intended    to    comply    with   the

                                           4
conditions    of    supervised        release,    and    Benton       reaffirmed     his

position, stating that “I intend to follow it within reason.”

J.A. 46.      Benton also indicated that since he had served his

time, he should not be required to pay restitution, but stated

that “[i]f they work with me, then I will work . . . .                          I have

rights.”     J.A. 49.      Benton claimed that he had “no problem with

the law.     I love the law, if it’s done right.”               J.A. 50.

     The     government      argued     that     Benton’s      statements      to    his

probation officer and at the hearing demonstrated that Benton

had no respect for the court and that “[t]here is absolutely no

prospect     that     this      defendant      will     ever     be     a    compliant

supervisee.”        J.A. 51-52.        The government therefore asked the

district court to terminate supervised release and impose the

maximum sentence available.             Counsel for Benton contended that

while Benton believed that supervised release in general was

illegal, Benton said that he would comply with the conditions.

Counsel    made      no    argument      about     what     sentence         would    be

appropriate for Benton, nor did counsel raise any objection to

the sentence sought by the government.

     After     considering       the    parties’      arguments,       the    district

court   stated      that   it   had    considered       imposing      the    statutory

maximum sentence, but that it was giving Benton the benefit of

the doubt in light of Benton’s “shaky” statements that he would

comply with the conditions of supervised release.                      J.A. 57.      The

                                          5
court thus announced its intention to sentence Benton to six

months’ imprisonment, to be followed by supervised release for

54 months.     The court stated that if Benton were to return to

court “with the same business about what you are not going to

do,” the court would terminate supervised release and impose the

maximum sentence.      J.A. 57.   The court explained:

          So we are going to start over again in six
     months, give you time to think about it. If you come
     back in here and decide you don’t want to comply, that
     you are going to jerk the Court around, that’s it. . .
     . The Court is certain that it is giving you a fair
     opportunity to succeed.   I have explained it to you.
     There’s nothing to negotiate about whether you are on
     supervised release or question the legality of it.
     There’s not one ounce . . . of credence or credibility
     in that argument.

J.A. 58.     As the court was instructing Benton to “drop that”

approach,    Benton    interrupted   to    say,   “I   can’t   drop   it,   your

Honor.”     J.A. 58.     The court then asked, “Are you telling me

that when you come back, you are coming back with the same thing

again?”     J.A. 58.    Benton responded, “I didn’t say I was coming

back with the same thing, but I have an issue where it’s based

on my rights.     My liberty is being -- I’m being deprived on my

liberty.”     J.A. 58.     The district court then changed its view

and sentenced Benton to 36 months’ imprisonment, because Benton

was “evidencing to the Court that he does not accept supervised

release [and that] [h]e does not plan to comply with the Court’s

directives to him.”      J.A. 58-59.        The court explained that


                                       6
           Upon your completion of the 36 months, you will
      be a free man.   You won’t have to do anything.  You
      are free to go.

           All right.     And the reason for it is the
      defendant has indicated he’s not going to comply and
      he continues to . . . challenge the right of the Court
      to impose supervised release.

J.A. 59.   Benton interjected, claiming that he did not refuse to

comply with the conditions of supervised release or challenge

the court’s right to impose supervised release.                        The district

court was unconvinced:

      [T]he Court has attempted to impose a sentence that’s
      reasonable, but the defendant, through his words and
      his deeds, is resisting the Court’s efforts to do
      that.   He’s made it clear he challenges the Court’s
      right and his responsibility to be on supervised
      release. So the Court does not believe it appropriate
      to continue to waste the resources of this Court on
      someone who does not respect the system or will not
      comply. Therefore, the Court will give him what he’s
      due under the law and release him.

J.A. 59-60.



                                          II.

      Benton    appeals,      challenging       the   sentence    imposed       by   the

district       court    as        both    procedurally      and        substantively

unreasonable.

      A sentence imposed on revocation of supervised release may

be   reversed    if    it    is    “plainly     unreasonable.”         18     U.S.C.    §

3742(a)(4).       “In       determining    whether     a   sentence      is    plainly

unreasonable,     we    must      first   decide      whether    the    sentence       is


                                           7
unreasonable.”       United States v. Crudup, 461 F.3d 433, 438 (4th

Cir. 2006).       Only if this court finds the sentence unreasonable

must we decide whether it is “plainly” so.                           See United States v.

Moulden, 478 F.3d 652, 657 (4th Cir. 2007).

      Reviewing      the    reasonableness            of       a     revocation       sentence

generally    involves       the   same    considerations              of    procedural      and

substantive       reasonableness         employed          in       the    review     of    the

original sentences imposed in criminal proceedings.                               See Crudup,

461 F.3d at 438.       In the context of supervised release, however,

our     review     “takes     a    more     deferential               appellate        posture

concerning issues of fact and the exercise of discretion than

reasonableness review for guidelines sentences.”                                 Moulden, 478

F.3d at 656 (internal quotation marks omitted).

      Benton      argues    his   sentence      is     procedurally              unreasonable

because the district court did not consider the sentencing range

suggested    in    Chapter    7   of     the    Sentencing            Guidelines       or   the

relevant § 3553(a) factors and did not sufficiently explain the

basis for imposing the maximum sentence.                           Because Benton made no

arguments about what sentence would be appropriate and did not

object after sentence was imposed, we review for plain error

only.     See United States v. Lynn, 592 F.3d 572, 578 (4th Cir.

2010)    (“By     drawing    arguments         from        §       3553    for    a   sentence

different than the one ultimately imposed, an aggrieved party

sufficiently alerts the district court of its responsibility to

                                           8
render an individualized explanation addressing those arguments,

and thus preserves [his] claim.”).                    In our view, Benton has

failed to carry his burden of showing that plain error occurred.

      A sentence is procedurally reasonable if the district court

considered the relevant policy statements set forth in Chapter 7

of the Sentencing Guidelines and the applicable factors set out

in 18 U.S.C. § 3553(a) and sufficiently explained the sentence

imposed.      See United States v. Thompson, 595 F.3d 544, 547 (4th

Cir. 2010); Moulden, 478 F.3d at 657.                  Nonetheless, “[w]e have

repeatedly said post-Booker that a court need not robotically

tick through § 3553(a)’s every subsection.”                  Moulden, 478 F.3d

at   657   (internal     quotation      marks     omitted).        The     court’s

explanation of its sentence must be sufficient to permit us to

“effectively review the reasonableness of the sentence,” id.,

but the explanation for a sentence exceeding that recommended by

the Guidelines’ policy statements need not be as specific as

might be required in the context of an initial sentencing, see

id. at 657; Crudup, 461 F.3d at 439.

      In this case, the district court did not explicitly refer

to the Guidelines’ suggested sentencing range, nor did the court

specifically mention the other relevant § 3553(a) factors.                       See

18   U.S.C.    §   3583(e)   (listing       the   §    3553(a)   factors    to    be

considered when modifying or revoking supervised release).                       We

nonetheless believe that the record as a whole demonstrates that

                                        9
the court in fact properly considered the advisory sentencing

range     and     the        relevant       statutory       factors      and     sufficiently

explained the basis for the sentence imposed.

      Preliminarily, we note that the court’s initial decision to

impose a sentence of six months demonstrates that the court was

in    fact       aware        of    the    sentencing       range       suggested       by    the

Guidelines.            Moreover, the factor driving the sentence in this

case, as the district court made abundantly clear, was Benton’s

own   defiant       intransigence.               After     considering      the    statements

Benton made to his probation officer and during the hearing, the

district court concluded as a factual matter that Benton would

not comply with the conditions of supervised release and that

the   appropriate             sentence      therefore      was    the    maximum       term    of

imprisonment           and     termination         of    supervised        release.           The

concerns expressed by the court during the hearing were clearly

related to several of the relevant § 3553(a) factors, see 18

U.S.C.       §     3553(a)(1),             (a)(2)(B)        &     (C),     and        reflected

consideration            of        Benton’s      individual       circumstances.               See

Moulden,         478     F.3d        at    658     (finding       that     district          court

“articulated           clear       and    appropriate      reasons       under    §   3553(a)”

where court’s reasons, “[e]ven if not couched in the precise

language of § 3553(a), . . . [could] be matched to a factor

appropriate        for        consideration        under    that    statute       and    [were]

clearly      tied        to        [the   defendant’s]          particular       situation”).

                                                  10
Because     the      district     court’s       statements     during      the    hearing

established         that   he    considered       all   required        factors    before

imposing sentence and were sufficiently detailed to permit us to

review the reasonableness of the sentence imposed, we find no

procedural error, plain or otherwise.

      As to Benton’s contention that the sentence imposed was

substantively unreasonable, we again disagree.                           A sentence is

substantively reasonable if the district court states a proper

basis   for    its     imposition    of     a    sentence    up    to    the     statutory

maximum.      See Crudup, 461 F.3d at 440; see also Thompson, 595

F.3d at 548 (“For a sentence to be plainly unreasonable, . . .

it must run afoul of clearly settled law.”).                            While the court

preliminarily        indicated      that    a    six-month        sentence     would    be

reasonable if Benton intended to comply with the conditions of

supervised release, the district court subsequently concluded,

based on Benton’s continued statements to the court, that Benton

in   fact     did    not    intend    to    comply      with      the    conditions     of

supervised release.              The district court’s factual finding on

this point is a fair reading of the many statements made by

Benton to his probation officer and during the course of the

hearing.       Given       the   record-supported       factual         finding    by   the

district court and our highly deferential review of revocation

sentences, see Moulden, 478 F.3d at 656; Crudup, 461 F.3d at

439, we cannot conclude that the district court erred, much less

                                            11
plainly erred, by imposing the maximum revocation sentence on a

defendant     who     refuses         to     comply        with     the    conditions      of

supervised release.            The sentence is substantial, but we cannot

say    that      it      is     substantively              unreasonable       under       the

circumstances of this case.



                                             III.

      As    explained         above,       the        district     court’s   sentence      is

neither    procedurally         nor    substantively             unreasonable.      Because

the   sentence      is   not     unreasonable,            it     quite    clearly    is   not

plainly     unreasonable.                  Accordingly,           we     reject     Benton’s

challenges    and     affirm      the       36-month       sentence       imposed    by   the

district court.

                                                                                    AFFIRMED




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