                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 15-3423
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   LEONARD NIIMOI,
                                                Appellant
                                    _______________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.N.J. No. 2-07-cr-00481-001)
                      District Judge: Honorable William H. Walls
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 13, 2016

            Before: AMBRO, JORDAN, and GREENBERG, Circuit Judges.

                                   (Filed: June 23, 2016)
                                     _______________

                                        OPINION
                                     _______________




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

       Leonard Niimoi appeals from the sentence imposed by the United States District

Court for the District of New Jersey for violating the terms of his supervised release. For

the reasons that follow, we will affirm.

I.     Background

       In 2007, Niimoi pleaded guilty to a one-count information for conspiracy to

possess, with intent to distribute, over 100 grams of heroin, in violation of 21 U.S.C.

§ 846. He was sentenced to 188 months’ imprisonment followed by a four-year period of

supervised release. After he successfully pursued a motion for collateral relief under 28

U.S.C. § 2255, that sentence was reduced to 95 months’ imprisonment followed by three

years of supervised release. Niimoi was released from custody and began his period of

supervised release on November 27, 2013. Less than five months later, in April 2014, he

was arrested by the Newark Police Department and charged with four drug-related

offenses based on his possession, with intent to distribute, of 12.5 grams of heroin within

1,000 feet of a school and 500 feet of a park or recreation center.

       Upon his release from state custody, Niimoi alerted the U.S. Probation Office of

his arrest. The Probation Office filed a Petition for Summons alleging that Niimoi had

committed a Grade A violation of his mandatory supervisory condition that he “not

commit another federal, state, or local crime.” (App. at 10.) The District Court issued

the summons and scheduled a hearing, which was ultimately held in September 2015.

Meanwhile, Niimoi pleaded guilty in state court to the underlying drug charges. At the


                                             2
time of the September hearing in federal court, he was awaiting sentencing by the state

court, where he faced a potential sentence of up to three years’ imprisonment with one

year of parole ineligibility. Niimoi admitted at the September hearing that he had

violated his supervised release by committing another crime. The District Court thus

immediately turned to sentencing.

       The Court discussed with Niimoi his background, his education, his original

conviction, and the fact that he had secured gainful employment in the time since the

April 2014 arrest. Niimoi said that his risk of future recidivism was minimal, in light of

his new job and support from his family, including his fiancé. The government correctly

advised the Court that the advisory guidelines range for Niimoi was 33 to 41 months,

limited by a statutory maximum of 36 months. It requested a sentence of 18 to 24 months

with no period of supervision. The Court imposed a sentence of 24 months’

imprisonment, to be served concurrently with, but not limited to, any state court sentence

arising from the relevant arrest, as well as two years of supervised release.1 Niimoi then

requested that the Court reconsider the term of supervised released in light of the

likelihood that he would be simultaneously supervised by the state parole system. That

request was denied. This timely appeal followed.




       1
        Despite the statement at the conclusion of the hearing that Niimoi’s sentence
included three years of supervised release, the term of supervised release in the Court’s
Order was only two years.
                                             3
II.    Discussion2

       Niimoi argues that he should be granted a resentencing because the sentence he

received is more severe than necessary to satisfy the goals established by 18 U.S.C.

§ 3553(a). Although not clearly stated, he appears to challenge both the procedural and

substantive reasonableness of his sentence. We review both of those aspects of the

District Court’s sentencing decision for abuse of discretion. United States v. Tomko, 562

F.3d 558, 567-68 (3d Cir. 2009) (en banc).

       A.        Procedural Reasonableness

       When reviewing a sentence, we “first ensure that the district court committed no

significant procedural error in arriving at its decision … .” United States v. Wise, 515

F.3d 207, 217 (3d Cir. 2008). Such errors can include “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence … .” Id. (internal quotation marks

omitted). Niimoi’s principal claim of error is that the District Court, in determining his

sentence, “[f]ocus[ed] almost exclusively on the punitive aspect of sentencing,” and did

so “at the expense of other equally important [§ 3553(a)] sentencing factors.” (Opening

Br. at 7, 16.)

       For a sentence following revocation of supervised release to be procedurally

reasonable, “the record must demonstrate that the … court gave meaningful consideration

       2
        The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and review Niimoi’s sentence pursuant
to 18 U.S.C. § 3742(a).
                                             4
to” the § 3553(a) factors. 3 United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007).

The District Court need not, however, “discuss and make findings as to each of the

§ 3553(a) factors if the record makes clear the court took the factors into account in

sentencing.” Id. (internal quotation marks omitted).

       It is undisputed that, as Niimoi claims, the District Court made numerous

references to the need to punish him. However, the Court’s comments throughout the

sentencing indicate that it gave meaningful consideration to all of the relevant § 3553(a)

factors. The District Court acknowledged Niimoi’s criminal history, and lamented that

he was before the Court again for another drug-related offense. (App. at 23.) It

discussed Niimoi’s background and character. (App. at 31.) It considered the nature of

the offense and found it “paramount” among the sentencing factors. (App. at 30.) It

addressed Niimoi’s breach of the Court’s trust, especially in light of the immediacy of his

recidivism, noting that he “continue[d] to commit crime willingly and knowingly” and

did so “hardly before [he was] able to freely walk … from custody for the charge [for

which the Court] originally put [him] in jail.” (App. at 30.) The Court addressed the

need to provide adequate deterrence and the need to protect the public. (A30.) Finally,

the Court addressed Niimoi’s “hope for rehabilitation,” albeit with the conclusion that the

       3
         In the revocation context, the statute specifically instructs courts to consider “the
factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),
and (a)(7).” 18 U.S.C. § 3583(e). The factors require that a sentencing judge consider
the nature and circumstances of the offense, the history and character of the defendant,
the need for the sentence to provide adequate deterrence, the need to protect the public
from the defendant, the need to rehabilitate the defendant, the appropriate advisory
guidelines range, pertinent policy statements, the need to avoid sentencing disparities,
and the need to provide restitution to victims. 18 U.S.C. § 3553(a).

                                                5
factor was of “secondary importance” relative to the other goals of sentencing. (App. at

31).

       Niimoi complains that the “court never specifically acknowledged that it was

addressing” the necessary factors under § 3553(a). (Reply Br. at 5.) But, even if true,

that is irrelevant. The District Court was not required to name and address each factor,

Bungar, 478 F.3d at 543, and the Court’s analysis makes clear that it was aware of, and

considered, the relevant factors. That, taken together with its correct calculation and

application of the advisory guidelines range4 and detailed explanation of the reasons for

the sentence, confirms that the sentencing procedure did not constitute an abuse of

discretion, but rather was entirely reasonable.

       B.     Substantive Reasonableness

       Niimoi also contends that his sentence is substantively unreasonable. His burden

under this inquiry is steep, as we will affirm “unless no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided.” Tomko, 562 F.3d at 568. Here, again, Niimoi’s core argument is

that the Court focused inappropriately on the need to punish him, and that the result was a

sentence that exceeded what was necessary to meet the sentencing goals of § 3553(a). He

claims that this is especially true in light of what he describes as his rehabilitation, having

secured honest work and stayed out of trouble in the time between his April 2014 arrest

and September 2015 sentencing.


       4
        The Court initially misstated the maximum sentence, but relied on the correct
guidelines range of 33 to 41 months and the correct statutory maximum of 36 months.
                                               6
       We disagree. The District Court’s sentence of 24 months’ imprisonment was

significantly below the Guidelines range of 33 to 41 months, and a full year below the

statutory maximum. While this does not make the sentence per se reasonable, it

undermines the contention that it was too harsh. Cf. Gall v. United States, 552 U.S. 38,

49 (2007) (holding that guidelines are not entitled to a presumption of reasonableness, but

also describing them as the “starting point and the initial benchmark” for determining an

appropriate sentence). Moreover, the federal sentence was set to run concurrently with

Niimoi’s confinement on state charges for the April 2014 arrest, further limiting the total

time of imprisonment that he would face. But, says Niimoi, the imposition of supervised

release following his imprisonment contributes to the unreasonableness of the sentence,

especially given that he would already be supervised by the state parole system. The

Court considered the likelihood of state supervision but was clear in concluding that, in

light of Niimoi’s background and history as a chronic offender, he needed federal

supervision. The imposition of this second layer of supervision does not push his

sentence into the realm of substantive unreasonableness. Indeed, our Court has

confirmed far greater impositions on liberty as substantively reasonable. See, e.g., United

States v. Dees, 467 F.3d 847 (3d Cir. 2006) (finding substantively reasonable a

revocation of supervised release sentence of 72 months, despite the fact that it was 21

months more than the defendant’s original sentence and nearly triple the top of the

guidelines range, in light of defendant’s violation of his supervised release soon after his

release from prison).



                                              7
         Finally, regarding Niimoi’s contention that the Court reached a substantively

unreasonable sentence because it was blinded by its desire to punish him, the very

objective of sentencing following a revocation of supervised release is to “sanction the

defendant’s breach of trust ... .” Bungar, 478 F.3d at 544. That the District Court placed

a somewhat greater emphasis on such sanction was not an abuse of its discretion, and

does not render the sentence substantively unreasonable. In short, the sentence Niimoi

received was entirely reasonable.

III.     Conclusion

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




                                              8
