                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4856


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

AUSTIN ROMAINE WEBB, JR., a/k/a Luck,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
Senior District Judge. (3:06-cr-00004-NKM-1)


Argued:   September 20, 2013                 Decided:   December 19, 2013


Before DAVIS, KEENAN, and FLOYD, Circuit Judges.


Affirmed by published opinion.    Judge Floyd wrote the opinion,
in which Judge Davis and Judge Keenan joined.


ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.         Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.    ON BRIEF:   Larry W. Shelton, Federal
Public Defender, Roanoke, Virginia, Frederick T. Heblich,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant.    Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, Ronald M.
Huber, Assistant United States Attorney, Alyssa Kuhn, Third Year
Law   Intern,    OFFICE   OF   THE   UNITED    STATES   ATTORNEY,
Charlottesville, Virginia, for Appellee.
FLOYD, Circuit Judge:

       Austin      Romaine        Webb,      Jr.,       appeals      his    thirty-two       month

sentence      imposed       following         the       revocation      of       his   supervised

release,      claiming       that      his    sentence          is   plainly       unreasonable

because      the    district         court    considered            statutorily        prohibited

factors      in    formulating        his     revocation          sentence.            Finding   no

reversible error, we affirm.



                                                I.

       Webb   pled     guilty        in    2006        to    conspiracy      to    possess   with

intent to distribute fifty grams or more of cocaine base and a

detectable         amount    of      cocaine       hydrochloride,            in    violation     of

21 U.S.C. §         846, and was sentenced to an eighty-month term of

imprisonment followed by a five-year term of supervised release.

Benefitting         from    a     sixteen-month             reduction       to    his    sentence

pursuant      to     Amendment        706     to       the    United       States      Sentencing

Guidelines (U.S.S.G.), Webb began serving his supervised release

term in August 2010.

       Less than one year into his term of supervised release,

Webb   was    arrested          in   New     York      City    on    charges       for   criminal

possession of marijuana and unlawful possession of marijuana.

That same month, he tested positive for use of marijuana.                                        In

September 2011, the district court found that Webb had committed

a Grade C violation of his supervised release and granted the


                                                   2
government’s request to take the matter under advisement for six

months.

      In     September       and     December        2011,    Jefferson           Area     Drug

Enforcement     Task        Force    detectives        conducted           two     controlled

purchases      of     cocaine       base      from     Webb       in       Charlottesville,

Virginia.        After       the     second        controlled      purchase,         officers

arrested Webb and confiscated 12.1 grams of cocaine base from

his person.     In January 2012, a federal grand jury indicted Webb

for   conspiracy       to    distribute        cocaine       base,         distribution      of

cocaine    base,     and    possession        of    cocaine       base     with    intent    to

distribute, in violation of 21 U.S.C. §§ 841(b)(1)(C), 846.                                  He

subsequently        pled    guilty    to   conspiracy         to    distribute        twenty-

eight or more grams of crack cocaine.

      Webb    appeared       for    sentencing        and    for       a   hearing    on    the

supervised release violation in October 2012.                              With respect to

the   conspiracy       conviction,         the      district       court         granted    the

government’s motion for a downward departure based upon Webb’s

substantial     assistance          and    sentenced        him    to       eighty    months’

imprisonment followed by eight years of supervised release.                                 As

to the supervised release violation, the government pressed the

court for a “significant sentence” at the high end of Webb’s

Guidelines     range,       noting    that     Webb    previously           had    benefitted

from a U.S.S.G. § 5K1.1 motion but that he was caught selling

drugs thirteen months later.                  Webb’s counsel conceded that the


                                              3
violation was “troubling,” given that it occurred shortly after

Webb    was    released,         but   requested           that    the    court     impose     a

sentence near the low end of the Guidelines range.

       Concluding      that       Webb’s      conduct         constituted       a    Grade     A

violation,      the    court       revoked          the     term     of   supervision        and

sentenced      Webb     to       thirty-two         months’        imprisonment       to     run

consecutively to any other federal or state sentence.                                In doing

so,    the    court    explained       the      rationale          for    its   sentence      as

follows:

       After considering the evidence and argument from the
       government and the defendant, the specific sentence
       recommended includes the nature and circumstances, the
       seriousness   of    the   violation,   provides   just
       punishment, reveals the history and characteristics of
       the defendant, promotes respect for the conditions of
       supervision imposed by the court, and affords adequate
       deterrence to noncompliant behavior, and provides
       protection from the public from further crimes of the
       defendant.

The district court also noted that the thirty-two month sentence

was    appropriate          in   light     of       Webb’s        continued     pattern       of

committing drug offenses.

       Webb   did     not    object      to   the         district    court’s       revocation

sentence.      He now appeals, contending that the thirty-two month

sentence imposed upon revocation of his supervised release is

plainly unreasonable.




                                                4
                                          II.

                                              A.

       A   district     court     has    broad      discretion       when    imposing    a

sentence upon revocation of supervised release.                         United States

v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).                        We will affirm

a revocation sentence if it is within the statutory maximum and

is not “plainly unreasonable.”                     United States v. Crudup, 461

F.3d 433, 438 (4th Cir. 2006).                 In making this determination, we

first consider whether the sentence imposed is procedurally or

substantively unreasonable.             Id. at 438-39.         Only if we find the

sentence unreasonable must we decide “whether it is ‘plainly’

so.”       United States v. Moulden, 478 F.3d 652, 657 (4th Cir.

2007) (quoting Crudup, 461 F.3d at 439).

       Because Webb did not raise any objection to the court’s

explanation     of    his     sentence,       we   review    the   record     below   for

plain error.         United States v. Hargrove, 625 F.3d 170, 183-84

(4th   Cir.    2010).        To   establish        plain    error,    Webb    must    show

(1) that the district court erred, (2) that the error is clear

or   obvious,   and     (3)    that     the    error   affected       his    substantial

rights, meaning that it “affected the outcome of the district

court proceedings.”           United States v. Olano, 507 U.S. 725, 732-

34 (1993).      Even when this burden is met, we retain discretion

whether to recognize the error and will deny relief unless the

district      court’s       error     “seriously       affect[s]       the     fairness,


                                              5
integrity or public reputation of judicial proceedings.”                         Id. at

736 (alteration in original) (quoting United States v. Young,

470 U.S. 1, 15 (1985)) (internal quotation marks omitted).



                                         B.

     In    exercising      its    discretion        to    impose     a   sentence      of

imprisonment       upon     revocation       of     a     defendant’s         supervised

release, a district court is guided by the Chapter Seven policy

statements    in     the   federal    Guidelines         manual,    as   well    as    the

statutory factors applicable to revocation sentences under 18

U.S.C. §§ 3553(a), 3583(e).              Chapter Seven instructs that, in

fashioning    a    revocation     sentence,        “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(3)(b) (2012).                          Section

3583(e),     the     statute     governing        supervised       release,     further

directs     courts    to    consider     factors         enumerated      in     “section

3553(a)(1),       (a)(2)(B),     (a)(2)(C),        (a)(2)(D),       (a)(4),     (a)(5),

(a)(6), and (a)(7)” * when imposing a sentence upon revocation of


     *
       The cross-referenced § 3553(a) factors include (1) “the
nature and circumstances of the offense and the history and
characteristics of the defendant”; (2) “the need for the
sentence imposed . . . to afford adequate deterrence to criminal
conduct,” “to protect the public from further crimes of the
defendant,” and “to provide the defendant needed educational or
(Continued)
                                         6
supervised release.             Absent from these enumerated factors is

§ 3553(a)(2)(A), which requires district courts to consider the

need for the imposed sentence “to reflect the seriousness of the

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

punishment for the offense.”             Accordingly, in Crudup, we stated,

without analysis or explanation, that a district court is not

permitted    to       impose    a   revocation      sentence       based    upon   these

omitted considerations.             461 F.3d at 439.

     Relying      on     Crudup,      Webb       contends    that    his    revocation

sentence    is    plainly       unreasonable       because    the     district     court

mentioned   the       § 3553(a)(2)(A)        factors       when    announcing      Webb’s

thirty-two month sentence.               We disagree.             Although § 3583(e)

enumerates the factors a district court should consider when

formulating       a    revocation      sentence,       it     does    not    expressly

prohibit a court from referencing other relevant factors omitted

from the statute.              And, as many of our sister circuits have

recognized,       the      factors       listed       in     § 3553(a)(2)(A)          are




vocational  training,   medical  care,  or   other  correctional
treatment in the most effective manner”; (3) the sentencing
range established by the Guidelines; (4) the pertinent policy
statements of the Sentencing Commission; (5) “the need to avoid
unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar conduct”; and
(6) “the need to provide restitution to any victims of the
offense.”




                                             7
intertwined with the factors courts are expressly authorized to

consider under § 3583(e).                    See, e.g., United States v. Young,

634   F.3d     233,        239       (3d     Cir.       2011)    (“[T]he     ‘nature   and

circumstances         of     the           offense,’        a    mandatory      revocation

consideration     under          §    3583(e),          necessarily    encompasses     the

seriousness of the violation of supervised release.”); United

States v. Lewis, 498 F.3d 393, 399-400 (6th Cir. 2007) (“[T]he

three considerations in § 3553(a)(2)(A), namely the need ‘to

reflect the seriousness of the offense,’ ‘to promote respect for

the law,’ and ‘to provide just punishment for the offense,’ are

essentially redundant with matters courts are already permitted

to take into consideration when imposing sentences for violation

of supervised release.”); United States v. Williams, 443 F.3d

35, 47-48 (2d Cir. 2006) (“[Section] 3583(e) cannot reasonably

be interpreted to exclude consideration of the seriousness of

the releasee’s violation, given the other factors that must be

considered.”).

      A    district         court’s         meaningful          consideration     of   the

enumerated § 3553(a) factors when imposing a revocation sentence

typically will include analysis that furthers the purposes of

post-revocation incarceration.                        Given that the § 3553(a)(2)(A)

factors are closely related to the factors district courts are

instructed to consider under § 3583(e), we fail to see how a

district     court’s       reference         to       the   § 3553(a)(2)(A)     sentencing


                                                  8
considerations,       without        more,        would    automatically          render     a

revocation     sentence       unreasonable.               Accordingly,          although     a

district     court    may     not     impose        a    revocation         sentence     based

predominately on the seriousness of the releasee’s violation or

the need for the sentence to promote respect for the law and

provide just punishment, we conclude that mere reference to such

considerations        does         not    render          a     revocation         sentence

procedurally unreasonable when those factors are relevant to,

and   considered      in    conjunction        with,      the    enumerated       § 3553(a)

factors.     See United States v. Miqbel, 444 F.3d 1173, 1182 (9th

Cir. 2006).

      In determining the sentence to impose upon revocation of

Webb’s     supervised        release,         the       district      court     noted      its

consideration        of     the    Chapter        Seven       policy        statements     and

discussed several of the enumerated § 3553(a) factors, including

the nature and circumstances of the offense, the history and

characteristics of the defendant, the need for the sentence to

afford   adequate         deterrence     to    noncompliant          behavior,     and     the

need for the sentence to provide protection to the public from

Webb’s     criminal        behavior.              Although      the     district         court

referenced    the     three        omitted     § 3553(a)        factors,        namely     the

seriousness     of        Webb’s    offense,        the       need     to     provide    just

punishment, and the need to promote respect for the conditions

of supervision, we conclude that those factors were related to


                                              9
other    considerations         permissibly       relied    upon     by      the    district

court.         Indeed,     the        district     court’s      references          to    the

seriousness       of    Webb’s    violation       and    imposing      just     punishment

were made in connection with its consideration of the nature and

circumstances of Webb’s offense as well as its determination

that     Webb’s    sentence        would    adequately         deter        violations      of

supervised release, both of which are approved factors under

§ 3583(e).        Further, the court’s reference to promoting respect

for     the    conditions        of    supervision       was    germane        to     Webb’s

individual history and the need to sanction his breach of the

court’s       trust,    considerations       relevant      to    the        Chapter      Seven

policy    statements.          Because     the     district     court        appropriately

focused its discussion on the Chapter Seven policy statements

and    based     Webb’s    revocation       sentence       on    factors        listed      in

§ 3583(e), we discern no error, much less plain error, in the

district court’s consideration of related factors.

       Finally, assuming arguendo Webb were able to demonstrate

the     district       court    committed        plain    error,       we     nevertheless

conclude he is unable to show that the court’s error affected

his     substantial       rights      by   influencing         the     outcome      of    the

revocation hearing.            Webb’s thirty-two month revocation sentence

is near the bottom of his Chapter Seven range of thirty to

thirty-seven months and is presumed reasonable.                             United States

v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).                                Webb has not


                                            10
argued that he would have received a lower sentence had the

district     court        not   committed           the    errors      he    alleges,     and

therefore, he has failed to justify a remand for resentencing.

United   States      v.    Knight,       606   F.3d       171,   178      (4th    Cir.   2010)

(explaining that to satisfy the third element of plain error

review “in the sentencing context, the defendant must show that

he   would   have     received       a    lower      sentence       had     the   error   not

occurred”).       Accordingly, he has failed to satisfy the third

prong of plain error review.



                                           III.

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                                    AFFIRMED




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