                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-4432


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DERRICK LASHAWN SMITH, a/k/a D-Love,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:04-cr-00047-nkm-17)


Submitted:    October 5, 2009                 Decided:   October 23, 2009


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,
Jr.,   Assistant   Federal  Public   Defender,  Charlottesville,
Virginia, for Appellant.       Julia C. Dudley, United States
Attorney, Ronald M. Huber, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Derrick          Lashawn        Smith       appeals        the        eighteen-month

sentence he received when the district court found him guilty of

a Grade C violation of his supervised release.                                On appeal, Smith

asks this court to vacate the sentence because it is plainly

unreasonable.            We     reject       Smith’s          arguments       and       affirm     his

sentence.

             In    2005,        a    federal       grand        jury    charged          Smith     and

sixteen other defendants with conspiracy to possess with intent

to    distribute        fifty       grams     or       more    of   crack          cocaine,      five

kilograms    or    more       of     cocaine,          and    unspecified          quantities       of

heroin, PCP, and marijuana, in violation of 21 U.S.C. §§ 841(a),

846    (2006),     and        conspiracy       to       participate           in    a     Racketeer

Influenced     Corrupt         Organization            (“RICO”),       in     violation       of    18

U.S.C. § 1962(d) (2006).                Smith pled guilty to the RICO charge.

Smith’s     sentencing              range     under           the      advisory          Sentencing

Guidelines        was     324-405           months’          imprisonment.               Upon      the

Government’s motion, the court departed downward from this range

because   Smith     had       substantially             assisted       the    Government,          and

sentenced Smith to twenty-four months’ imprisonment and three

years’ supervised release.                    In May 2008, Smith’s sentence was

reduced   to      nineteen          months,    as       a     result     of    his       18   U.S.C.

§ 3582(c)(2) (2006) motion based on the crack cocaine amendment

to the Sentencing Guidelines.

                                                   2
               On August 26, 2008, Smith began his supervised release

term.     Less than four months later, on December 11, 2008, Smith

was     arrested      and   charged    with      possession           of   marijuana       and

driving with a suspended license.                       Smith’s probation officer

filed a violation report based on this conduct, classifying it a

Grade C violation.             U.S. Sentencing Guidelines Manual (“USSG”)

§ 7B1.1(a)(3),         p.s.     (2008).          This,    combined             with     Smith’s

category      V     criminal    history,     resulted        in   a    policy         statement

range    of    7-13    months’    imprisonment.              USSG     §    7B1.4(a),      p.s.

Because       the    original    conviction       was    a    Class        A    felony,     the

statutory maximum term of imprisonment for the violation was

sixty months.          See 18 U.S.C. §§ 1963(a), 3559(a)(1), 3583(e)(3)

(2006); 21 U.S.C. § 841(b)(1)(A)(ii), (iii) (2006).

               At the revocation hearing, the Government argued for

an    upward      departure     from   the   policy      statement             range   because

Smith’s original sentence resulted from a downward departure.

Although Smith conceded the violation, he asked the court to

consider certain facts that he maintained mitigated the severity

of the violation, including that the offense involved a very

small amount of marijuana; that Smith had not failed a drug

test; that Smith had cooperated with his probation officer; and

that Smith was pursuing a GED and taking steps to have his

driver’s license reinstated.                 In addition to this proffer by



                                             3
counsel, Smith’s uncle testified that he would offer Smith full-

time employment if Smith were released.

               The district court found Smith guilty of the violation

and sentenced him to eighteen months’ imprisonment.                         The court

explained this was “an upward departure based on the substantial

5K motion that he received on the underlying offense.”

               On appeal, Smith contends the district court failed to

adequately explain the basis for its decision to depart upward

from the policy statement range, and argues that his sentence is

plainly unreasonable, both procedurally and substantively.

               We will affirm a sentence imposed after revocation of

supervised release if it is not plainly unreasonable.                           United

States    v.     Crudup,       461   F.3d    433,   437   (4th     Cir.   2006).     The

sentence first must be assessed for reasonableness, “follow[ing]

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.”                      Id. at 438-39; see

United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In

applying       the     ‘plainly        unreasonable’        standard,      we    first

determine,       using    the    instructions       given    in    Gall   [v.   United

States,    128    S.     Ct.    586,   597   (2007)],     whether    a    sentence    is

‘unreasonable.’”).



                                             4
            Upon        finding     a     revocation       sentence       is   not

unreasonable, we will affirm the sentence.                 Crudup, 461 F.3d at

439.     Only if a sentence is found procedurally or substantively

unreasonable will this court “decide whether the sentence is

plainly    unreasonable.”          Id.;   see   Finley,     531    F.3d   at   294.

Although the district court must consider the Chapter 7 policy

statements and the requirements of 18 U.S.C. §§ 3553(a), 3583

(2006), “the [district] court ultimately 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 (internal

quotation marks and citations omitted).

            Smith’s challenge to the procedural reasonableness of

his    sentence    lacks   merit.       The   district    court    articulated   a

reason    for     its   upward    departure:    that     Smith    had   previously

received a significant downward departure.                 As Application Note

4 to USSG § 7B1.4, p.s., specifically contemplates a departure

on this very basis, and the Government made the court aware of

this and the extent of the court’s previous downward departure,

we find this explanation was sufficient.               “[A] court’s statement

of its reasons for going beyond non-binding policy statements in

imposing a sentence after revoking a . . . supervised release

term need not be as specific as has been required when courts

departed from guidelines.”              Crudup, 461 F.3d at 439 (internal

quotation marks, citation, and emphasis omitted).

                                          5
            Smith next asserts that his sentence is substantively

unreasonable      because     the    district    court     failed      to    provide     a

sufficient explanation for the eighteen-month term and the term

was greater than necessary.             According to Smith, the court heard

testimony and proffer that weighed against an upward departure,

but did not specifically address any of those facts prior to

imposing the departure sentence.                 Thus, Smith maintains, the

sentence is substantively unreasonable.

            Consideration of the substantive reasonableness of a

sentence requires an assessment of the totality of circumstances

underlying the sentence, including the extent of any variance

from the Guidelines range.             United States v. Abu Ali, 528 F.3d

210, 261 (4th Cir. 2008).                While Smith is correct that the

district    court      did   not    address   the    facts      that    he   argued     in

support of a within-policy range sentence, this omission does

not   render     the    sentence      substantively       unreasonable.           It   is

apparent the district court determined that the considerations

advanced    by    Smith      were    simply   insufficient        to    overcome       the

single reason advanced for the upward departure: that, although

Smith’s    twenty-four       month    sentence      was   the    product     of   a    93%

reduction from the bottom of his original guideline range, less

than four months after his release from that sentence, Smith

violated the terms of his supervised release.                          This violation

was a plain breach of the court’s trust, see Crudup, 461 F.3d at

                                          6
437-38,     and       in    light    of    that       breach,      the     district      court

exercised       its    discretion         to    depart       upward      from    the    policy

statement range of seven to thirteen months’ imprisonment to

sentence Smith to a term of eighteen months.                          This departure is

modest in light of the totality of the circumstances, and is

well within the five-year statutory maximum.

            For       the    foregoing          reasons,      we   find     the     sentence

imposed    was    reasonable         and       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    the     court      and    argument         would   not   aid     the    decisional

process.

                                                                                       AFFIRMED




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