                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-4940


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEITH L. CONYERS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Margaret B. Seymour, District
Judge. (3:06-cr-00321-MBS-4)


Submitted:   February 17, 2012             Decided:   March 13, 2012


Before KING, GREGORY, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, T. DeWayne Pearson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            After    revoking      Keith    L.    Conyers’    supervised    release

for the third time in approximately four years, the district

court   ordered      Conyers     to      serve    a   fourteen-month       term    of

incarceration to be followed by a three-year term of supervised

release.      In    his   appeal    of     that   judgment,    Conyers    does    not

challenge     the   revocation        of   his    supervised    release     or    the

reasonableness       of    the     term     of    imprisonment     he     received.

Instead, Conyers’ sole appellate argument is that the district

court abused its discretion in imposing an additional term of

supervised release.         We reject this argument as without merit.

However, because the fourteen-month term of supervised release

conflicts with our decision in United States v. Maxwell, 285

F.3d 336, 341 (4th Cir. 2002), we vacate that portion of the

judgment order and remand this case for the imposition of a term

of supervised release that conforms with Maxwell.

            The district court has broad discretion to impose a

sentence upon revoking a defendant’s supervised release, United

States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010), and we

will affirm a revocation sentence if it is within the governing

statutory range and not plainly unreasonable.                   United States v.

Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006).                    In reviewing a

revocation sentence, this court takes a more deferential posture

regarding the issues of fact and the exercise of discretion than

                                           2
it does when reviewing the reasonableness of a post-conviction

sentence.     United States v. Moulden, 478 F.3d 652, 656 (4th Cir.

2007).      Only if we conclude the sentence is unreasonable must we

decide “whether it is ‘plainly’ so.”                Id. at 657.

             Conyers asserts that his proven inability to conform

to    and   abide    by    the   terms    of    supervision      demonstrates     that

supervision     is    ineffective.         Thus,     Conyers      argues,     ordering

another term of supervised release was an abuse of discretion,

because it is illogical and wasteful of limited judicial and

probationary         resources.                Conyers’        argument,      however,

misapprehends the governing standard.                     As we have explained,

“[a] district court abuses its discretion if it fails adequately

to take into account judicially recognized factors constraining

its exercise, or if it bases its exercise of discretion on an

erroneous factual or legal premise.”                 DIRECTV, Inc. v. Rawlins,

523   F.3d    318,   323    (4th   Cir.    2008)    (internal         quotation   marks

omitted).     In reviewing a district court’s decision for an abuse

of discretion, this court does not consider “whether we would

have come to the same conclusion as the district court if we

were examining the matter de novo.”                      Morris v. Wachovia Sec.

Inc., 448 F.3d 268, 277 (4th Cir. 2006).                          Instead, we will

discern an abuse of discretion if, after reviewing the record

and    reasoning     of    the   district       court,    we    are    left   with   “a

definite and firm conviction that the court below committed a

                                           3
clear error of judgment in the conclusion it reached upon a

weighing    of    the   relevant    factors.”        Id.    (internal       quotation

marks and citation omitted).

            Given this deferential standard, we readily conclude

that the district court did not abuse its discretion in imposing

an additional term of supervised release.                  The governing statute

specifically       authorizes      the    district     court        to     impose   an

additional term of supervised release on an offender who has

violated his present term of supervised release.                     See 18 U.S.C.

§   3583(h)      (2006).     Further,     that    this      was     Conyers’     third

supervised release revocation proceeding demonstrates Conyers’

unwillingness to abide by the terms of his supervised release,

which in itself justifies the court’s decision to impose another

term of supervision.         Accord United States v. Metoyer, 341 F.

App’x 809, 811-12 (3d Cir. 2009) (unpublished after argument)

(upholding district court’s decision to impose a subsequent term

of supervised release despite offender’s “lack of amenability to

supervised       release”    (internal         quotation       marks       omitted)).

Indeed, accepting Conyers’ argument to the contrary would serve

only   to   reward      Conyers’   non-compliance,         a   result      we   cannot

sanction.

            We     next    consider      the    duration       of    the     term   of

supervised release the district court imposed.                      “The length of

such a term of supervised release shall not exceed the term of

                                         4
supervised release authorized by statute for the offense that

resulted in the original term of supervised release, less any

term       of   imprisonment         that     was    imposed      upon       revocation    of

supervised release.”               18 U.S.C. § 3583(h).            Conyers’ underlying

offense conduct was a Class B felony.                           See 18 U.S.C. §§ 1344,

3559(a)(2) (2006).                 Thus, pursuant to 18 U.S.C. § 3583(b)(1)

(2006), the maximum term of supervised release Conyers could

have received was sixty months.

                It   is     well    settled    that    “the      plain    meaning    of    the

phrase      ‘less     any    term    of    imprisonment         that   was    imposed     upon

revocation       of    supervised         release’     in   §    3583(h)      is   that    the

prison term in the current revocation sentence, together with

all prison time imposed under any prior revocation sentence or

sentences, must be aggregated.”                     Maxwell, 285 F.3d at 341.              In

the aggregate, Conyers’ three revocation sentences total thirty-

six    months’       imprisonment.            Accordingly,       the     maximum    term    of

supervised release the court could have imposed for the instant

violation was twenty-four months.                     See 18 U.S.C. § 3583(h).              We

thus conclude the district court erred in ordering Conyers to

serve an additional thirty-six-month term of supervised release

upon his release from incarceration. *


       *
       Although Conyers did not raise this argument on appeal, we
have elected to exercise our discretion to correct this error in
light of the strong societal interest in ensuring that criminal
(Continued)
                                                5
           For    these   reasons,    we   affirm    the   district      court’s

judgment in part, but we vacate the term of supervised release

and remand this case to the district court for the imposition of

a term of supervised release that conforms with Maxwell.                      We

dispense   with    oral    argument    because      the    facts   and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED IN PART,
                                                            VACATED IN PART,
                                                                AND REMANDED




defendants are not subjected to greater punishment than is
statutorily authorized.   See, e.g., Wash. Gas Light Co. v. Va.
Elec. & Power Co., 438 F.2d 248, 250-51 (4th Cir. 1971)
(explaining that, “if deemed necessary to reach the correct
result, an appellate court may sua sponte consider points not
presented to the district court and not even raised on appeal by
any party”).



                                      6
