                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-3264
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                               FREDDIE SINKLER, JR.,
                                         Appellant
                                  ______________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                         (D.C. No. 1-01-cr-00071-001)
                     District Judge: Honorable Yvette Kane
                                ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  February 14, 2014
                                   ______________

      Before: McKEE, Chief Judge, CHAGARES and SHWARTZ, Circuit Judges.

                           (Opinion Filed: February 20, 2014)
                                   ______________

                                       OPINION
                                    ______________

SHWARTZ, Circuit Judge.

       Freddie Sinkler, Jr., appeals from the judgment of the United States District Court

for the Middle District of Pennsylvania sentencing him to 24 months’ incarceration for

violating the terms of his supervised release. We will affirm.
                                             I

       On October 1, 2001, Sinkler pled guilty to one count of distribution and

possession with intent to distribute in excess of 50 grams of cocaine base, in violation of

21 U.S.C. § 841(a)(1). On February 20, 2003, the District Court sentenced Sinkler to 212

months’ imprisonment and five years of supervised release. Sinkler’s prison term was

subsequently reduced to 134 months, and on February 29, 2012, he was released from

prison and began his period of supervised release. During his period of supervised

release, Sinkler participated in the Court-Assisted Re-Entry (“CARE”) program.

       On July 12, 2013, the United States Probation Office filed a Petition alleging that

Sinkler had violated two conditions of his supervised release: the statutory condition that

he not commit another crime and the special condition that he “reside and satisfactorily

participate” in a residential reentry program. App. 16-17. The Petition alleged that he

violated the first condition on three separate occasions. First, he was charged with

fleeing or attempting to elude the police while they were making a routine traffic stop.

The criminal charges were reduced to summary traffic citations and Sinkler was ordered

to pay a fine. Second, Sinkler was charged with providing a false name to police

investigating a domestic dispute. The charges were dismissed after Sinkler completed

community service. Third, Sinkler was charged with simple assault. He pled guilty to a

count of harassment and the assault charge was withdrawn. Finally, Sinkler failed to

comply with the rules of the residential reentry program and was discharged from the

program. The conduct surrounding Sinkler’s arrests for fleeing or eluding and simple

assault, if proven, constituted Grade A violations of his supervised release. U.S.S.G.

                                             2
§ 7B1.1(a)(2). The conduct surrounding the harassment and false identification to law

enforcement charges, as well as the violation of the special condition, if proven,

constituted Grade C violations. Id. § 7B1.1(a)(3).

       The District Court held a supervised release revocation hearing on July 18, 2013.

At the hearing, the Government informed the District Court that Sinkler agreed to plead

guilty to the Grade C violation, the Government would not pursue the Grade A violations,

and each side would “argue in terms of sentence.” App. 19. The District Court then

asked Sinkler personally whether he understood that he would plead guilty to violating

the Grade C violation concerning his failure to comply with the reentry facility’s rules,

waive a factual hearing concerning that violation, and be sentenced based on that

violation. Sinkler confirmed that he understood, the District Court accepted the plea, and

the parties presented their sentencing arguments.

       During his argument, Sinkler’s counsel noted that the Guideline range for the

Grade C violation for failure to comply with the special condition was 8 to 14 months of

imprisonment. He also explained the circumstances underlying the Grade A violations.

Specifically, he stated that Sinkler had difficulty adjusting after his release from prison

and while “some of the violations that are not being pursued are criminal in nature,” he

argued that “some of them I think stemmed from a reaction on his part that he didn’t want

to go back to jail, sort of a panicked reaction to any contact with law enforcement.” App.

21. He also contended that Sinkler lacked “coping skills,” and that the staff at the reentry

facility had made “some unreasonable demands,” leading to Sinkler’s Grade C violation.

App. 21-22. Sinkler also spoke on his own behalf, apologizing for his inability to comply

                                              3
with the CARE program, explaining the circumstances surrounding his failure to

complete the residential reentry program, and describing his difficulty adjusting to jail.

       In response, the Government argued that the residential reentry program’s

requirements were reasonable and that, to the extent that Sinkler’s conduct reflected a

fear of returning to jail, his decision to flee from the police “ensured that he will go back

to jail.” App. 27. The Government also described the facts concerning his arrest for

fleeing from the police, arguing that those incidents “bel[ied]” the “remorse” Sinkler

expressed at the hearing. App. 27-28.

       The District Court then imposed a sentence of 24 months’ imprisonment, 10

months above the upper end of the Guideline range for a Grade C violation but

significantly below the Guideline range of 51 to 63 months for a Grade A violation. The

District Court demonstrated that it was familiar with Sinkler’s involvement in the CARE

program by noting the positive things he accomplished and how those involved with the

program “really extended themselves so that he could be a successful person on

supervised release,” App. 31, including providing assistance in resolving his arrests. The

District Court also noted the facts surrounding those arrests and the view of all involved,

including Sinkler, that he would not benefit from an additional term of supervised release

given his lack of success during supervision. The District Court also acknowledged the

importance of work and Sinkler’s family obligations, and stated that it had “considered

the factors listed in 18 U.S.C. § 3553” in fashioning its sentence. App. 32

       Sinkler challenges the procedural reasonableness of his sentence on three grounds.

Specifically, he contends that the District Court: (1) erroneously found that he had

                                              4
committed Grade A violations and improperly based its sentence on those findings; (2)

failed to give meaningful consideration to the factors listed in § 3553(a); and (3) failed to

provide a written statement of reasons for its sentence.

                                              II

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.

We exercise jurisdiction over Sinkler’s appeal pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a)(1). We generally review the procedural and substantive reasonableness

of a district court’s sentence upon revocation of supervised release for abuse of

discretion. United States v. Clark, 726 F.3d 496, 500 (3d Cir. 2013).

       Here, the Government contends that Sinkler has forfeited his challenge to the

District Court’s consideration of the conduct underlying the Grade A violations by failing

to object. If that is the case, we apply plain error review. United States v. Vazquez-

Lebron, 582 F.3d 443, 445 (3d Cir. 2009). A defendant bears the burden of establishing

plain error under Fed. R. Crim. P. 52(b) 1 and must prove that: (1) the District Court erred;

(2) the error was “plain,” meaning that it was “clear” or “obvious”; and (3) the error

affected substantial rights. Johnson v. United States, 520 U.S. 461, 466-67 (1997) (citing

United States v. Olano, 507 U.S. 725, 732 (1993)). If these three prongs are met, then the

appellate court may “exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Id. at 467 (quotation marks, citations, and alterations omitted).


       1
        Rule 52(b) states “[a] plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
                                               5
                                             III

                                             A

       We first consider Sinkler’s contention that the District Court found he committed

Grade A violations. Sinkler never made such a claim before the District Court and thus

the plain error standard applies. He cannot show plain error occurred. Indeed, contrary

to his contention, the District Court expressly stated that it was sentencing Sinkler based

solely on the one Grade C violation for failing to comply with the special condition of his

release that required him to complete the residential reentry program. The District Court

noted that the Grade A violations had been addressed through the CARE program so that

it was “entirely appropriate under the circumstances . . . that the [C]ourt would be

focused on the Grade C violation.” App. 30. Sinkler clearly knew this, as he focused his

argument on the Guideline range for a Grade C violation, 8 to 14 months. Thus,

Sinkler’s assertion that the District Court found that he committed a Grade A violation is

meritless and therefore cannot satisfy the plain error standard.

       To the extent he also challenges the District Court’s consideration of the facts

underlying the Grade A violations in imposing sentence on the Grade C violation, we

agree with the Government that this challenge is also subject to plain error review. First,

Sinkler did not object to the Government’s characterization or reference to his arrests that

were the basis of the Grade A violations. Second, Sinkler introduced the facts




                                             6
surrounding his arrest for fleeing or eluding the police 2 when he argued that the arrest

“stem[med] from a reaction on his part that he didn’t want to go back to jail, sort of a

panicked reaction to any contact with law enforcement.” App. 21. By making an

argument concerning his motive for committing the illegal activity that led to him to be

charged with fleeing or eluding, he opened the door to the Government’s response to that

argument with additional facts surrounding that arrest and the Court’s consideration of it.

Thus, given his failure to object to the District Court’s consideration of such facts and his

affirmative use of them, he did not preserve any objection for appeal and plain error

review applies.

       Here, no error, plain or otherwise, occurred. The District Court may consider

relevant information in sentencing, including uncharged conduct or acquitted conduct.

See, e.g., United States v. Watts, 519 U.S. 148, 156 (1997) (per curiam) (affirming

reliance on acquitted conduct); United States v. Ciavarella, 716 F.3d 705, 736 (3d Cir.

2013) (noting that a “court may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the information

has sufficient indicia of reliability to support its probable accuracy” (quoting U.S.S.G.

§ 6A1.3(a))). Thus, the District Court was authorized to consider conduct that constituted

Grade A violations even though it did not lead to convictions in any court and was not the

object of the supervised release violation on which Sinkler was being sentenced.



       2
         Sinkler also argues that the District Court improperly relied on his arrest for
simple assault. To the contrary, the District Court clearly discounted the facts concerning
that arrest, noting “we don’t know the background of that.” App. 30.
                                              7
       Accordingly, the District Court appropriately considered the facts concerning the

fleeing and eluding charge when sentencing Sinkler for the Grade C violation.

                                             B

       Sinkler next challenges the adequacy of the District Court’s explanation of its

sentence. To be procedurally reasonable, a district court’s sentence upon revocation of

supervised release must reflect “rational and meaningful consideration [of] the relevant

§ 3553(a) factors,” as required by § 3583(e). 3 United States v. Doe, 617 F.3d 766, 769

(3d Cir. 2010) (internal quotation marks omitted). Consideration of other § 3553(a)

factors, however, is not prohibited. See Clark, 726 F.3d at 501. A “district court need

not make explicit findings as to each of the § 3553(a) factors if the record makes clear

that the court took the factors into account in sentencing,” and addressed any colorable

§ 3553(a) arguments a defendant raised. United States v. Merced, 603 F.3d 203, 215 (3d

Cir. 2010) (internal quotation marks and citation omitted).

       Here, the District Court showed its consideration of the appropriate § 3553(a)

factors. First, the District Court demonstrated its familiarity with Sinkler and his

       3
          Section 3583(e) directs the district court to consider the following factors set
forth in § 3553(a): (a)(1) (the nature and circumstances of the offense and the history and
characteristics of the defendant); (a)(2)(B) (the need for the sentence imposed to afford
adequate deterrence to criminal conduct); (a)(2)(C) (the need for the sentence imposed to
protect the public from further crimes of the defendant); (a)(2)(D) (the need for the
sentence imposed to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner);
(a)(4) (the applicable Guidelines or policy statements issued by the Sentencing
Commission pursuant to 28 U.S.C. § 994(a)(3)); (a)(5) (the Guidelines or policy
statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2));
(a)(6) (the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct); and (a)(7) (the need to provide
restitution to any victims of the offense). 18 U.S.C. §§ 3583(e), 3553(a).
                                              8
personal background through its role overseeing his participation in the CARE program,

and it considered the facts surrounding the alleged violations of the conditions of his

supervised release. The District Court also affirmed Sinkler’s own explanation that he

acts irrationally when he gets upset, which the District Court had observed through his

poor performance on supervised release despite the assistance of the CARE program.

The District Court probed his plans for his future and acknowledged his attempts to

reform his behavior and reenter the community during his release, although those

attempts proved unsuccessful. Moreover, the District Court considered and rejected a

sentence involving additional supervised release based, in part, on the Probation Office’s

conclusion that additional supervised release would not be helpful, which Sinkler

conceded. The District Court also noted the importance of work and Sinkler’s family

obligations, and stated that it had considered the additional § 3553(a) factors.

       In short, the District Court adequately considered the relevant § 3553(a) factors

and addressed Sinkler’s arguments before imposing the above-Guidelines sentence.

                                             C

       Sinkler also argues that the District Court erred by not providing a written

statement of reasons as set forth in 18 U.S.C. § 3553(c)(2) for imposing the above-

Guidelines sentence. Congress imposed § 3553(c)(2)’s written statement requirement to

improve data collection for use in reports to Congress. See 28 U.S.C. § 994(w)(1). The

statement of reasons form that Section 3553(c)(2) requires contains checkboxes for the

sentencing judge to indicate both whether a sentence was within or outside of the

Sentencing Guidelines and the particular Guideline relied upon to reach the sentence.

                                              9
The form is then gathered, together with judgments of conviction and demographic

information concerning the offender, and used by the Sentencing Commission to prepare

reports to Congress. 28 U.S.C. § 994(w)(3). The forms typically do not contain narrative

explanations for the sentence imposed. The absence of either a form or reasons for a

particular sentence on such a form, however, does not mean the record lacks a recitation

of the sentencing court’s reasons. Thus, even assuming that the written statement of

reasons requirement of § 3553(c)(2) applies to supervised release revocations, 4 the failure

to provide such a statement “is not cause for remand if the departure is otherwise

permissible and the district court’s reasoning is persuasive.” United States v. Cooper,

394 F.3d 172, 176 (3d Cir. 2005). 5 Here, as we have explained, the District Court

adequately stated on the record its reasons for imposing an above-Guidelines sentence

and demonstrated its consideration of the § 3553(a) factors. Accordingly, we decline to

remand based on the absence of a written statement of reasons.

                                             IV

       For the foregoing reasons, we will affirm the judgment of the District Court.


       4
         At least one circuit has held that the written statement of reasons requirement
does not apply in supervised release revocations because § 3583(e), which governs the
revocation of supervised release, does not reference § 3553(c)(2). United States v.
Cotton, 399 F.3d 913, 915-16 (8th Cir. 2005).
       5
         The case on which Sinkler relies, United States v. Johnson, 640 F.3d 195 (6th
Cir. 2011), is not to the contrary. There, the Sixth Circuit held only that the district court
was required to state its reason for departure on the record. Id. at 207-08 (analyzing the
transcript of the sentencing hearing). The requirement that a district court explain its
reasons for departing upward, which was satisfied here for the reasons we have
explained, is distinct from the requirement of a written statement of reasons, which is to
be recorded on a form and provided to the Sentencing Commission in accordance with 28
U.S.C. § 994(w)(1)(B). See 18 U.S.C. § 3553(c)(2).
                                             10
