                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-3048
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                             CHARLES BRACCIODIETTA,
                                               Appellant
                                 ________________

                            On Appeal from the District Court
                               for the District of New Jersey
                         (D.C. Criminal No. 1-06-cr-00716-001)
                        District Judge: Honorable Renee M. Bumb
                                    ________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 27, 2018

                Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges

                                (Filed: September 5, 2018)


                                   ________________

                                       OPINION *
                                   ________________




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

       While on supervised release following his guilty plea to two counts of bank

robbery, Charles Bracciodieta repeatedly violated the terms of his release by testing

positive for drugs. The District Court revoked his supervision and imposed a term of 12

months’ imprisonment. Bracciodieta now appeals, contending that the District Court

imposed a substantively unreasonable sentence. We will affirm.

                                            I.

       After pleading guilty to two counts of bank robbery in violation of 18 U.S.C.

§ 2113(a), Bracciodieta was sentenced to 127 months’ imprisonment and a three-year

term of supervised release. He was released from prison in December 2016. One of the

terms of Bracciodieta’s supervised release, as is standard, was a requirement that he

refrain from excessive use of alcohol or any use of a controlled substance except as

prescribed by a physician. Approximately three months after his release, Bracciodieta’s

probation officer filed a Noncompliance Summary with the District Court, detailing his

three positive tests for marijuana use throughout January and February and his statement

to his probation officer that no judge would imprison him for its use. The summary

stated Bracciodieta’s probation officer had issued several verbal warnings and provided

Bracciodieta access to mental health and substance abuse treatment throughout that

period of time. The probation officer did not recommend court action but suggested

using the summary as an official reprimand. The Court agreed and added that: “This

shall be the last warning by the Court.” App. 21.

       Two months later, Bracciodieta’s probation officer filed a Petition for Warrant or


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Summons for Offender under Supervision. In that petition, Bracciodieta’s probation

officer stated that he had committed three violations of his supervised release by failing

an additional two drug tests, tampering with a drug test, and failing to attend two

scheduled drug treatment appointments. Following the issuance of an arrest warrant by

the District Court, Bracciodieta was arrested on May 22, 2017. After a hearing, the

District Court released him and continued his supervised release.

       Following five additional failed drug tests, Bracciodieta’s probation officer filed

an Amended Petition, which provided additional detail for one of the earlier violations

and added a fourth violation based on the numerous failed drug tests after the initial

petition. Bracciodieta was arrested and appeared before the Court for a status conference.

Bracciodieta’s counsel stated that his client was not receiving proper treatment for his

mental health condition, and the District Court continued the proceedings until that issue

could be resolved.

       Bracciodieta’s final revocation hearing was held a month later. Bracciodieta

admitted to the factual allegations underlying the fourth violation for use of a controlled

substance, and the Government moved to dismiss the remaining three violations. The

resulting Guidelines range for his sentence was 8 to 14 months’ imprisonment. During

the sentencing portion of the hearing, Bracciodieta’s counsel emphasized that

Bracciodieta had not returned to violent crime and had found employment. Counsel also

highlighted the effects of his mental health condition on his drug use. After the

conclusion of argument by the defense and Government and after hearing from

Bracciodieta, the District Court imposed a sentence of 12 months’ imprisonment and a


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two-year term of supervised release, of which the first six months was to be spent in a

residential reentry center. Bracciodieta appealed.

                                           II. 1

       On appeal, Bracciodieta contends that his sentence is substantively unreasonable

because the District Court failed to adequately consider his mental health condition and

its impact on his drug use and did not give his positive accomplishments adequate

weight. We disagree.

       “We review the . . . substantive reasonableness of a sentence imposed upon

revocation of supervised release for an abuse of discretion.” United States v. Thornhill,

759 F.3d 299, 307 n.9 (3d Cir. 2014). To determine whether a sentence is substantively

unreasonable, “we ask ‘whether the final sentence, wherever it may lie within the

permissible statutory range, was premised upon appropriate and judicious consideration

of the relevant factors.’” United States v. Clark, 726 F.3d 496, 500 (3d Cir. 2013)

(quoting United States v. Doe, 617 F.3d 766, 770 (3d Cir. 2010)).

       The District Court acknowledged Bracciodieta’s mental health condition but noted

that Bracciodieta had not taken advantage of the resources provided by the Court:

       And I hate to say that you have to stop making excuses for yourself because
       I don’t want to minimize your issues, your mental health issues at all, but
       you’ve got to recognize and understand and get the tools that are available
       to you, to get the help that you need.

App. 81–82. Far from failing to consider Bracciodieta’s mental health issues and the

effect they had on his drug use, the Court determined that Bracciodieta could not rely on


1
  The District Court had jurisdiction under 18 U.S.C. § 3231 and § 3583(e). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                             4
this matter for leniency without “having . . . tried.” App. at 82.

       Furthermore, the District Court considered defense counsel’s argument that

Bracciodieta had demonstrated progress during his supervised release term by refraining

from criminal activity other than drug use. The Court agreed with counsel that “there is

progress here” but additionally observed that Bracciodieta had “to do more.” App. 76.

Although Bracciodieta did not commit additional bank robberies while on supervised

release, he “violated the conditions that [he] knew about and [was] warned about not

once, but twice.” App. 82. The Court concluded that it could not “minimize that.” App.

82.

       Considering the 18 U.S.C. § 3553(a) factors, the Court determined that a guideline

range sentence of 12 months’ imprisonment would serve as just punishment, would deter

Bracciodieta after he had previously not responded to two warnings, and would protect

the public from additional crimes. 2 Additionally, the Court imposed a period of

residential reentry during the supervised release period to “provid[e] [Bracciodieta] with

treatment in the most effective manner.” App. 82. Based on the District Court’s

statements and Bracciodieta’s record, we conclude that he has not met the “heavy

burden” of showing his sentence is substantively unreasonable. See Clark, 726 F.3d at

500. We cannot say that “no reasonable sentencing court would have imposed the same


2
  Although a district court may not place undue weight on the factors enumerated in 18
U.S.C. § 3553(a)(2)(A) (including just punishment) in the revocation of supervised
release context, the court does not commit a procedural error simply by considering those
factors. See Clark, 726 F.3d at 500–01; see also United States v. Young, 634 F.3d 233,
241 (3d Cir. 2011). The District Court here focused on the need to deter Bracciodieta and
to provide treatment and did not place undue weight on the factors listed in
§ 3553(a)(2)(A).

                                              5
sentence on [Bracciodieta] for the reasons the district court provided.” Id. (quoting Doe,

617 F.3d at 770).

                                           III.

       For the foregoing reasons, we will affirm the judgment and sentence.




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