                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 13-4604
                                       _____________

                             UNITED STATES OF AMERICA

                                              v.

                            CALVIN PLUMMER, a/k/a FORTY

                                             Appellant
                                      ______________

                APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                               (D.C. No. 08-cr-00376-021)
                      District Judge: Honorable Joy Flowers Conti
                                    ______________

                         Submitted Under Third Circuit LAR 34.1(a)
                                    September 9, 2014
                                     ______________

                   Before: SMITH, SHWARTZ and ROTH, Circuit Judges.

                                 (Filed: September 16, 2014)
                                       ______________

                                         OPINION
                                      ______________

SHWARTZ, Circuit Judge.

          Calvin Plummer appeals the sentence imposed for his violation of supervised

release. Because the sentence was procedurally and substantively reasonable, we will

affirm.

                                              1
                                              I

       As we write primarily for the benefit of the parties, we recite only the essential

facts and procedural history. Plummer pleaded guilty to possession with intent to

distribute and distribution of cocaine and cocaine base, and was sentenced to 46 months

of imprisonment followed by 3 years of supervised release. Among other conditions of

supervised release, Plummer was required to refrain from unlawfully using a controlled

substance, refrain from committing another crime, participate in drug testing and

treatment, and notify his probation officer within 72 hours of being arrested or questioned

by a law enforcement officer.

       While Plummer was on supervised release, the United States Probation Office

filed a Petition alleging that Plummer: (1) tested positive for marijuana ten times; (2) was

arrested for driving under the influence; (3) failed to notify his probation officer of the

arrest within 72 hours; (4) failed to appear for substance abuse testing six times; and (5)

failed to attend a weekly session of the Probation Office’s Intermediate Sanction

Program.

       On November 4, 2013, the District Court held a hearing at which Plummer

admitted to these violations and to additional violations for failing to inform his probation

officer of several traffic citations. To avoid revocation of his supervised release,

Plummer asked that the hearing be continued so that he could come into compliance with

his supervised release conditions by clearing his outstanding warrants, attending drug

treatment, beginning full-time employment, and refraining from further drug use. The

District Court granted Plummer’s request and adjourned the hearing until November 19,

                                              2
2013. The District Court cautioned Plummer that if he used drugs or failed to attend drug

treatment, therapy, or the Probation Office’s Intermediate Sanction Program, he would

“go right to jail.” App. 41, 57-58, 65.

       At the continued hearing on November 19, the District Court learned that

Plummer had not complied with the District Court’s directives and had committed

additional violations. Specifically, Plummer used marijuana, failed to clear any of his

outstanding warrants, and missed a required Intermediate Sanction Program session. The

District Court reminded Plummer that his conduct constituted Class C violations and his

Category III criminal history resulted in an advisory Guidelines sentencing range of 5 to

11 months’ imprisonment. The parties then presented sentencing arguments and

Plummer spoke on his own behalf. Plummer and his counsel both attempted to dissuade

the District Court from re-incarcerating him, and instead asked it to permit him to

continue working so that he could earn enough money to clear his outstanding warrants.

       The District Court revoked Plummer’s supervised release and sentenced him to 6

months of incarceration and 24 months of supervised release, with the first 6 months of

supervised release to be served in a community confinement center. In explaining the

sentence, the District Court discussed Plummer’s repeated violations, the opportunity it

had given Plummer to address those violations, Plummer’s personal history and

characteristics, and the need for a sentence to deter future criminal activity and protect

the public. The District Court also expressed concern for Plummer’s substance abuse and

advised him to seek additional treatment both during incarceration and upon release.

Although Plummer sought house arrest in lieu of incarceration, he did not assert that the

                                              3
imposition of community confinement in addition to prison unlawfully exceeded the

advisory Guidelines range. Plummer appeals.

                                             II1

       Plummer challenges both the procedural and substantive reasonableness of his

sentence. We typically review the procedural and substantive reasonableness of a

sentence imposed for a violation of supervised release for abuse of discretion. United

States v. Clark, 726 F.3d 496, 500 (3d Cir. 2013). Where a defendant fails to raise a

specific objection to his sentence before the district court, however, we review for plain

error. United States v. Jones, 740 F.3d 127, 132 (3d Cir. 2014). Plain error review

requires us to determine whether the District Court erred, the error was “plain,” and the

error affected “substantial rights.” United States v. Miller, 527 F.3d 54, 70 (3d Cir.

2008). If an appellant meets all three requirements, then we may exercise our discretion

under Fed. R. Crim. P. 52(b) to consider the error, but only if the error “seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United

States, 520 U.S. 461, 467 (1997) (quotation marks, citations, and alterations omitted).

                                             III

       Plummer challenges his sentence on three grounds. He contends that the District

Court: (1) erred by sentencing him to “twelve months of confinement” in violation of the

U.S. Sentencing Guidelines §§ 7B1.3(c) and 7B1.4; (2) failed to meaningfully consider

the factors listed in 18 U.S.C. § 3553(a) or adequately discuss them in relation to his


       1
         The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction over Plummer’s appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
                                              4
sentence; and (3) imposed a sentence that was both excessive and greater than necessary

to achieve the goals of sentencing.

                                              A

       We first address Plummer’s claim that the District Court’s sentence violated

Guidelines §§ 7B1.3(c) and 7B1.4. Plummer’s Class C violations exposed him to a

revocation sentence of 5 to 11 months’ imprisonment. U.S.S.G. § 7B1.4. Because the

minimum term of imprisonment is between 1 month and 6 months, “the minimum term

may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment

that includes a term of supervised release with a condition that substitutes community

confinement or home detention according to the schedule in § 5C1.1(e) for any portion of

the minimum term.” U.S.S.G. § 7B1.3(c)(1). Plummer argues that the combination of 6

months’ imprisonment and 6 months’ community confinement amounts to 12 months of

confinement in violation of these sections.

       Because Plummer did not raise this argument before the District Court, he must

show that the sentence was plain error. Plummer cannot do so as community

confinement does not constitute imprisonment. Imprisonment and community

confinement are different because imprisonment removes a person from the community

while community confinement restricts a person within the community. United States v.

Adler, 52 F.3d 20, 21 (2d Cir. 1995). Additionally, the Sentencing Guidelines view

community confinement and imprisonment as distinct. For instance, our Court has

explained that community confinement “cannot constitute imprisonment” that fulfills

§ 5C1.1’s requirement that at least part of a split sentence “be satisfied by imprisonment.”

                                              5
United States v. Serafini, 233 F.3d 758, 777-78 (3d Cir. 2000).2 Because community

confinement as a condition of supervised release is not an additional term of

imprisonment, Plummer’s challenge fails. See also United States v. Elkins, 176 F.3d

1016, 1021 (7th Cir. 1999); United States v. Horek, 137 F.3d 1226, 1229 (10th Cir. 1998)

(“[C]ommunity confinement, as a condition of probation, is not ‘imprisonment’ within

the meaning of the Guidelines and, therefore, should not be credited against either the

sentence imposed on revocation of probation or the maximum guideline term.”).

       For these reasons, the District Court did not err in sentencing Plummer to 6

months of incarceration and 24 months of supervised release with the first 6 months in

community confinement.




       2
        In Serafini, this Court stated in dicta that the district court would have committed
reversible error had it ordered community confinement to satisfy “the requirement for
imprisonment.” Serafini, 233 F.3d at 777-78; see also Adler, 52 F.3d at 21
(imprisonment and community confinement “are not synonyms” for purposes of
minimum sentence under § 5C2.1(d)); United States v. Pielago, 135 F.3d 703, 713 (11th
Cir. 1998) (the “Sentencing Commission considered a sentence to confinement in a
community treatment center to be different from a ‘sentence of imprisonment’” under
§ 5C1.1(d)); United States v. Latimer, 991 F.2d 1509, 1511-12 (9th Cir 1993) (reviewing
“numerous provisions of the Guidelines” and concluding that the Sentencing Commission
“repeatedly draws a sharp distinction between confinement in a community treatment
center or halfway house and confinement in a conventional prison facility”).
                                             6
                                              B

       Plummer next argues that the District Court imposed a procedurally unreasonable

sentence by failing to consider the § 3553(a) factors or “discuss these factors in context

or relation to the sentence imposed.” Appellant’s Br. 13.3 To be procedurally

reasonable, a revocation sentence must, among other things, reflect “rational and

meaningful consideration of the relevant § 3553(a) factors.”4 United States v. Clark, 726

F.3d 496, 500 (3d Cir. 2013) (quotation marks omitted). A district court is “not required

to comment explicitly on every [sentencing] factor,” United States v. Howe, 543 F.3d

128, 136-37 (3d Cir. 2008) (quotation marks and citations omitted), or “make explicit

findings as to each of the § 3553(a) factors if the record makes clear that [it] took the

facts into account in sentencing.” United States v. Merced, 603 F.3d 203, 215 (3d Cir.

2010) (quotation marks and citation omitted).


       3
         Because Plummer was sentenced prior to our decision in United States v. Flores-
Mejia, No. 12-3149, --- F.3d ---, 2014 WL 3450938 (3d Cir. July 16, 2014) (en banc), we
will review this issue for abuse of discretion despite his apparent failure to explicitly raise
his procedural objection after the District Court announced his sentence. See Flores-
Mejia, 2014 WL 3450938, at *4 & n.7 (clarifying that a defendant’s “duty to object to [a]
sentencing court’s procedural error after sentencing” does not apply retroactively).
       4
         Section 3583(e) permits a district court to revoke or modify the conditions of
supervised release upon consideration of the following § 3553(a) factors: (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
                                              7
       The record demonstrates that the District Court gave meaningful consideration to

the applicable § 3553(a) factors and adequately explained its chosen sentence. The

District Court acknowledged the multiple violations to which Plummer admitted and

noted that he was given a chance to rectify his violations before sentencing, yet he

continued to violate the conditions of his supervised release. It then considered the need

to impose a sentence sufficient to deter future criminal conduct generally, the need to

protect the public from Plummer specifically, and Plummer’s need for treatment. In this

regard, the District Court expressed concern about Plummer’s continued marijuana abuse,

and conveyed its desire that he seek treatment during his 6-month incarceration, and

implored him to save money to clear his outstanding warrants upon release.

       Because the District Court meaningfully considered the relevant § 3553(a) factors

and explained its chosen sentence, the sentence was procedurally reasonable.

                                             C

       Having found Plummer’s sentence procedurally reasonable, we next address his

assertion that his sentence was excessive and greater than necessary to achieve the goals

of sentencing, and therefore substantively unreasonable.

       We will affirm a procedurally sound sentence “unless no reasonable sentencing

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

the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)

(en banc). Thus, our review of substantive reasonableness is highly deferential and


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
focuses on “whether the final sentence, wherever it may lie within the permissible

statutory range, was premised upon appropriate and judicious consideration of the

relevant factors.” Clark, 726 F.3d at 500 (quoting United States v. Doe, 617 F.3d 766,

770 (3d Cir. 2010)). In reviewing a sentence for violation of supervised release, we are

mindful that its primary purpose is “to sanction the defendant’s breach of trust” while

accounting for “the seriousness of the underlying violation and the criminal history of the

violator.” United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (quotation marks

omitted); see also United States v. Thornhill, No. 13-2876, --- F.3d ---, 2014 WL

3056536, at *12 (3d Cir. July 8, 2014) (noting that a defendant’s “recidivism” and

violation of mandatory supervised release conditions come “to the forefront” of a

revocation hearing).

       Here, we cannot conclude that Plummer’s sentence is unreasonable. In

determining the sentence, the District Court considered Plummer’s repeated violations of

his supervised released conditions and his failure to take advantage of the opportunity the

District Court provided to rectify them. It also discussed his personal characteristics, his

drug use, and its conclusion that a custodial sentence together with a period of

supervision was necessary to address his need for treatment and the goal of deterring him

from future violations. For these reasons, Plummer’s sentence is substantively

reasonable.

                                             IV

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



                                              9
