                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                 _____________

                                  No. 10-1322
                                 _____________

                        UNITED STATES OF AMERICA

                                        v.

                                JAMES E. HALL,

                                        Appellant
                                 ______________

             APPEAL FROM UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                        (D.C. Crim. Action No. 05-366)
                  District Judge: Honorable Donetta Ambrose
                               ______________

                    Submitted Under Third Circuit LAR 34.1(a)
                                October 20, 2010
                                ______________

     Before: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges

                        (Opinion Filed: October 28, 2010)
                                ______________

                                    OPINION
                                 ______________


GREENAWAY, JR., Circuit Judge

     Appellant James E. Hall (“Hall”) contends that the sentence imposed upon him for

                                         1
violating the conditions of his supervised release was procedurally and substantively

unreasonable. He additionally contends that the sentence violates his due process rights

because the government failed to provide any evidence to support one of the bases for his

violation. For the reasons set forth below, we will affirm Hall‟s sentence.

                                         I. FACTS

       We write solely for the benefit of the parties and recount only the essential facts.

       On March 13, 2006, Hall pled guilty to a two count indictment, charging him with

(1) a violation of 18 U.S.C. § 513(a) (uttering and possessing a forged check) and (2) a

violation of 18 U.S.C. § 1701 (obstruction of the mail). (App. 51-72.) That same day,

the District Court held a bond revocation hearing, based on Hall‟s violation of several

conditions of his pretrial release. (Id. at 74-86.) As a result of the hearing, Hall was

placed on electronic monitoring. (Id. at 85.) Hall never allowed the electronic

monitoring to be set up, (id. at 90-91), and he violated other conditions of pretrial release

(id. at 92, 96-97). Based on these violations, Hall‟s pretrial release bond was revoked on

April 10, 2006. (Id. at 100.)

       On June 28, 2006, Hall was sentenced to a term of twelve months and one day on

Count One, and six months on Count Two. Both sentences were to run concurrently.

Restitution was also ordered. The District Court waived the fine. Hall also received

three years of supervised release, to commence upon his release from custody. (Id. at

122-23.) Hall completed his federal sentence of incarceration, and subsequently served a

state sentence of incarceration in North Carolina on unrelated charges. He was released
                                              2
on October 30, 2008. (Id. at 129.) Due to the terms of supervised release in his state

sentence, he was not allowed to return to Pennsylvania immediately upon his release.

(Id.) He returned to Pennsylvania on March 20, 2009. (Id.)

        Upon his return to Pennsylvania, he failed to contact the Probation Office, as

required. (Id.) He also failed to respond to letters from the Probation Office. (Id.) At a

revocation hearing on September 11, 2009, the District Court heard testimony from the

Probation Officer assigned to Hall‟s case. The Probation Officer recounted her

unsuccessful attempts to contact Hall, beginning July 15, 2009, as well as Hall‟s

untruthfulness regarding his employment and his sisters‟ concern about checks missing

from their grandmother‟s check book to which Hall had access when living with his

grandmother while on supervised release. (Id. at 142-51.) The District Court placed Hall

on electronic monitoring, noting it was accepting the Probation Officer‟s

recommendation to “give [him] one more chance . . . to comply.” (Id. at 161.)

        Hall did not heed the District Court‟s warning, and failed to comply with the

conditions of electronic monitoring. (Id. at 164-65.) In fact, he failed to appear at the

next scheduled revocation hearing on November 9, 2009. (Id. at 164.) The District Court

issued a bench warrant, and Hall was subsequently arrested on January 8, 2010. (Id. at

172.)

        At the revocation hearing on January 13, 2010, the District Court heard testimony

from Hall, as well as two probation officers. The testimony addressed Hall‟s failure to

comply with electronic monitoring; his failure to report to the Probation Office; his
                                              3
failure to report for mental health testing; his failure to appear at the revocation hearing

on November 9, 2009; his state criminal charges that were dismissed; and positive drug

test results. (Id. at 172-88.) The District Court found, and Hall‟s counsel agreed, that

Hall had committed a Class C violation, and calculated the sentencing range established

by the Sentencing Guidelines to be six to twelve months. (Id. at 191, 193.) After

addressing the § 3553(a) factors, the District Court concluded that Hall had lied during

his testimony, and sentenced Hall to twenty-one months of incarceration, which was the

time remaining on his term of supervised release. (Id. at 197-98.)

                                      II. Jurisdiction

              The District Court had jurisdiction under 18 U.S.C. § 3231. We have

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                 III. Standard of Review

       Following the Supreme Court‟s decision in United States v. Booker, 543 U.S. 220

(2005), “it is now well understood that an appellate court reviews a sentence for

reasonableness with regard to the factors set forth in 18 U.S.C. § 3553(a). We see no

reason why that standard should not also apply to a sentence imposed upon a revocation

of supervised release, and we so hold.” U.S. v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007)

(internal citations omitted). “Subsequently, Gall made it plain that we assess

unreasonableness under the abuse-of-discretion standard.” U.S. v. Tomko, 562 F.3d 558,

564 (3d Cir. 2009) (citing Gall v. U.S., 552 U.S. 38 (2007)).

       “In order for a sentence to be reasonable, the record must demonstrate that the
                                              4
sentencing court gave „meaningful consideration‟ to [the § 3553(a)] factors. [1] The court

need not, however, discuss a defendant‟s clearly nonmeritorious arguments, or otherwise

„discuss and make findings as to each of the § 3553(a) factors if the record makes clear


1
    Section 3553(a) provides that:
          The court, in determining the particular sentence to be imposed, shall consider--
         (1) the nature and circumstances of the offense and the history and characteristics
         of the defendant;
         (2) the need for the sentence imposed--
                 (A) to reflect the seriousness of the offense, to promote respect for the law,
                 and to provide just punishment for the offense;
                 (B) to afford adequate deterrence to criminal conduct;
                 (C) to protect the public from further crimes of the defendant; and
                 (D) to provide the defendant with needed educational or vocational training,
                 medical care, or other correctional treatment in the most effective manner;
         (3) the kinds of sentences available;
         (4) the kinds of sentence and the sentencing range established for
                 (A) [the particular offense and the particular defendant by the Sentencing
                 Guidelines]; or
                 (B) in the case of a violation of probation or supervised release, the
                 applicable guidelines or policy statements issued by the Sentencing
                 Commission pursuant to section 994(a)(3) of title 28, United States Code,
                 taking into account any amendments made to such guidelines or policy
                 statements by act of Congress (regardless of whether such amendments
                 have yet to be incorporated by the Sentencing Commission into
                 amendments issued under section 994(p) of title 28);
         (5) any pertinent policy statement--
                 (A) issued by the Sentencing Commission pursuant to section 994(a)(2) of
                 title 28, United States Code, subject to any amendments made to such
                 policy statement by act of Congress (regardless of whether such
                 amendments have yet to be incorporated by the Sentencing Commission
                 into amendments issued under section 994(p) of title 28); and
                 (B) that, except as provided in section 3742(g), is in effect on the date the
                 defendant is sentenced.
         (6) the need to avoid unwarranted sentence disparities among defendants with
         similar records who have been found guilty of similar conduct; and
         (7) the need to provide restitution to any victims of the offense.
                                               5
the court took the factors into account in sentencing.‟” Bungar, 478 F.3d at 543 (quoting

U.S. v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). “In addition to demonstrating that it

gave meaningful consideration to the § 3553(a) factors, a sentencing court must

demonstrate that it reasonably applied those factors to the circumstances of the case. Our

review in this regard is highly deferential.” Id. (internal citations omitted). Stated

another way, our review has two steps. First, we must ensure that the district court

committed no procedural error, such as incorrectly calculating the Guidelines range.

Second, we must consider the substantive reasonableness of the sentence. Tomko, 562

F.3d at 567 (citing Gall, 552 U.S. at 51).

       When considering a sentence imposed for revocation of supervised release, other

factors apply. That is, 18 U.S.C. § 3583(e) permits a court to sentence a defendant to up

to two years of imprisonment for violation of a class C offense, after consideration of the

§ 3553(a) factors.2 Section 3583(e) also allows a district judge to require a defendant to

serve the unexpired term of supervised release in prison.

                                      IV. Discussion

                                             A.

       Hall argues that his sentence is both procedurally and substantively flawed. We

disagree.


2
   Notably, § 3583(e) omits § 3553(a)(2)(A) (describing the punitive purposes of
sentencing) and § 3553(a)(3) (“the kinds of sentences available”) from the factors to be
considered when sentencing a defendant for a violation of supervised release.

                                              6
       Procedurally, the District Court correctly calculated the applicable Guidelines

range. The District Court also considered the § 3553(a) factors, and then imposed

sentence. While Hall claims the District Court did not mention any § 3553(a) factors,

there is no requirement that the District Court recite the factors verbatim. Rather, the

record simply must demonstrate that the court considered the factors. Bungar, 478 F.3d

at 543. Here, the District Judge noted her familiarity with Hall‟s criminal history, both

generally and in connection with the present offense. (App. 196-97.) She also

acknowledged the need to provide deterrence to future wrongdoing, and the need to

protect at least one member of the public — Hall‟s grandmother — from further crimes.

She noted the range of sentences available, and, in fact, had already attempted to impose

a less restrictive sentence for a prior violation by placing Hall on electronic monitoring.

As the record demonstrates, this effort was to no avail. The District Court did not discuss

any relevant policy statements, nor did she comment on the need to avoid sentencing

disparities. However, there is no requirement that the District Court address every single

factor so long as the majority of the factors were addressed. Id. Procedurally, the

District Court‟s sentence was reasonable.

       Substantively, Hall argues that the District Court‟s failure to consider every

available alternative sentence, such as sending him to a half-way house, combined with

the length of his sentence, renders his sentence unreasonable. Hall bases this argument

on several factors: his belief that this was his “first real revocation;” the length of the

sentence compared to his sentence for his original offense; and the deviation from the
                                              7
Guidelines range. (Br. for Appellant 17.)

       Contrary to Hall‟s assertion, this was his second revocation hearing, and it, like the

hearing in September, cited him for numerous violations. Further, there is no

requirement that the sentence for a revocation of supervised release be less than the

sentence for the original offense. U.S. v. Dees, 467 F.3d 847, 853 (3d Cir. 2006) (“We

decline to find a sentence imposed upon revocation unreasonable simply because it

exceeds the initial sentence of imprisonment when the District Court has ably identified

the reasons warranting such punishment.”). Finally, district courts are permitted to

deviate from the Guidelines range, so long as they articulate reasons for doing so. Here,

the District Court stated reasons for the departure, which, upon review, we find to be

reasonable and not an abuse of discretion.

                                             B.

       Hall also argues that the case should be remanded because the government failed

to introduce any evidence to support the allegation that Hall failed to complete his mental

health evaluation. Hall acknowledges that sufficient evidence existed to support the

finding that he committed one Class C violation, so his Guidelines range would not

change. However, he believes he is entitled to remand for a resentencing since the failure

to produce evidence was a violation of his Fifth Amendment right to due process.

       “A district court must find „by a preponderance of the evidence that the defendant

violated a condition of supervised release. . . .‟” U.S. v. Maloney, 513 F.3d 350, 354 (3d

Cir. 2008) (quoting 18 U.S.C. § 3583(e)). The factual findings supporting the decision to
                                             8
revoke supervised release are reviewed for clear error. Id.

       According to the Petition on Supervised Release, on September 22, 2009, Hall

appeared two hours late for his appointment with Dr. Robert Coufal and was unable to

complete the mental health evaluation. He was instructed to return on September 24,

2009. He failed to do so. (App. 50.) In an effort to provide an “explanation for some of

the failures on his part,” (id. at 171), Hall testified at the revocation hearing on January

13, 2010. According to Hall, he went to Dr. Coufal‟s office twice — “two days back to

back,” and then he “never heard anything from [Dr. Coufal‟s assistant] or Dr. Coufel [sic]

since.” (Id. at 181.)

       After hearing the testimony introduced by both the government and Hall, the

District Court found all of Hall‟s testimony to be untruthful. Specifically, the District

Court stated that “I think you have lied here today to me,” and “I don‟t know why you

left the mental health evaluation and didn‟t return when you were supposed to. But you

didn‟t do it.” (Id. at 97.)

       Given the evidence presented, the District Court did not clearly err in concluding

that Hall did not complete the mental health evaluation. Even if the District Court had

accepted Hall‟s testimony that he attended two sessions at Dr. Coufal‟s office as truthful,

his testimony supports the finding that he failed to complete the mental health evaluation.

He testified that he participated in some tests with Dr. Coufal‟s assistant. Nowhere did

he state that he had completed the evaluation. Rather, his testimony supported the

statement in the Petition on Supervised Release that he failed to complete the mental
                                               9
health evaluation.

       Looking at the record as a whole, the District Court did not err in concluding Hall

failed to complete the mental health evaluation. Evidence existed to support the District

Court‟s finding that Hall failed to complete the mental health evaluation. We see no

reason for the government to introduce evidence on this issue, as Hall suggests, when

Hall‟s own testimony, introduced before the government‟s witnesses took the stand,

supported the District Court‟s conclusion.3

                                      V. Conclusion

       We find that Hall‟s sentence is not procedurally or substantively defective. We

also conclude that the District Court did not clearly err in rejecting Hall‟s explanation as

to his failure to complete the mental health evaluation. Therefore, we will affirm Hall‟s

sentence.




3
  Section 3583(e)(3) requires a district court to “find[] by a preponderance of the
evidence that the defendant violated a condition of supervised release;” it does not place
any burden of production on the government.
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