                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-2216
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                 KENNETH DAMONE SMITH a/k/a McKinley Smith

                            KENNETH DAMONE SMITH,
                                            Appellant
                                _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. No. 2-99-cr-00359-001)
                        District Judge: Hon. J. Curtis Joyner
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 11, 2013

             Before: RENDELL, FISHER, and JORDAN, Circuit Judges.

                               (Filed: January 11, 2013 )
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Kenneth Smith appeals an order of the United States District Court for the Eastern

District of Pennsylvania revoking his supervised release and sentencing him to 12
months’ imprisonment followed by 2 years’ supervised release. For the reasons that

follow, we will affirm the judgment of the District Court.

I.     Background

       In June 2000, Smith was tried and convicted of possessing a firearm after having

been convicted of a felony, and in 2001 the District Court sentenced him to 120 months’

imprisonment and three years’ supervised release. In February 2011, Smith was released

from prison and placed on supervised release. The following month, the District Court

entered an order modifying the terms of the supervised release to require Smith to submit

to drug testing and to participate in a drug and alcohol treatment program. Smith waived

objection to this modification.

       Smith subsequently volunteered for, and was accepted into the District Court’s

Supervision to Aid Reentry (“STAR”) program under the oversight of a magistrate judge.

In May 2011, the magistrate judge entered an order requiring Smith to complete 15 hours

of community service per week, until he secured gainful employment. Smith did not

obtain employment, nor did he complete the required community service. He also

continued to use illegal drugs. In June 2011, the magistrate judge entered an order

placing Smith in a residential reentry center for 60 days’ treatment.

       Upon release from the treatment center, Smith was required to attend intake

appointments for additional outpatient treatment at another treatment center. He failed to

attend his scheduled appointments. In January 2012, Smith failed to submit to a urine

test and, because of his continued use of illegal substances, the magistrate judge ordered

him to be taken into custody for a period of seven days. After Smith’s release, a

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probation officer attempted to arrange intake for further treatment, but Smith repeatedly

failed to make appointments and lied to the probation officer about his attendance. In

April 2012, Smith admitted to the reentry court coordinator that he had relapsed to using

cocaine, and he submitted a urine sample that tested positive for cocaine. Smith’s

probation officer reported the violation of supervised release, and a revocation hearing

was held.

       At the hearing, Smith claimed that he had not ingested cocaine, but “something

called cocoa tea” (App at 26). He did, however, admit the balance of the allegations

concerning his violations of the terms of his supervised release and of the STAR

program. The District Court made no finding as to whether Smith had ingested cocaine

prior to giving the April 2012 urine sample, but found that Smith had otherwise violated

the terms of his supervised release. Without objection, the Court held that Smith was

guilty of a Grade C violation and determined that the advisory Sentencing Guideline

range was 8-14 months imprisonment.1 The Court sentenced him to 12 months’

imprisonment, to be followed by two years’ supervised release. The Court also directed

the Bureau of Prisons to provide a mental health examination and treatment for any

exhibited mental health problems, and further required that Smith be evaluated for

       1
         That guideline range was incorrect. Because Smith had a criminal history
category IV and the violation of his supervised release was a Grade C offense, the correct
guideline level was 6-12 months. See U.S.S.G. § 7B1.4 & app. note 1. This mistake
would ordinarily require a remand for resentencing. United States v. Knight, 266 F.3d
203, 207-08 (3d Cir. 2001). However, Smith did not object to the guideline range at his
revocation hearing, and does not claim plain error in his brief on appeal, and the issue is
therefore waived. United States v. Andrews, 681 F.3d 509, 532 (3d Cir. 2012). Also,
when the District Court imposed the sentence, it referred to the range’s correct upper
limit of 12 months.
                                             3
continued treatment and counseling for his mental health and substance abuse problems

as a condition of supervised release.

       This timely appeal followed.

II.    Discussion2

       Smith argues that the District Court’s sentence of 12 months’ imprisonment was

procedurally and substantively unreasonable because the District Court did not fully

evaluate all of the sentencing factors listed in 18 U.S.C. §3553(a). Specifically, Smith

contends that the violations for which he was sentenced are minor and that the District

Court did not properly weigh his depression and anxiety as reasons for those violations.

Although Smith does not make any clear distinctions between the procedural and

substantive unreasonableness of his sentence in his brief on appeal, we address each of

those sentencing requirements in turn.

       A.     Procedural Reasonableness

       “To demonstrate that a sentence is procedurally reasonable, a district court must

show meaningful consideration of the relevant statutory factors and the exercise of


       2
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review a district
court’s sentence upon revocation of supervised release for abuse of discretion. United
States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). We will not disturb the sentence
imposed for a violation of supervised release unless it is “plainly unreasonable.” United
States v. Blackston, 940 F.2d 877, 894 (3d Cir. 1991). “Our review for reasonableness
proceeds in two stages: (1) First, we ensure that the district court committed no
significant procedural error ... [and] (2) if the district court’s procedures are sound, we
proceed to examine the substantive reasonableness of the sentence.” United States v.
Friedman, 658 F.3d 342, 360 (3d Cir. 2011) (citations and internal quotation marks
omitted). “[T]he party challenging the sentence bears the burden of proving the
sentence’s unreasonableness.” Id.
                                             4
independent judgment.” United States v. Friedman, 658 F.3d 342, 360 (3d Cir. 2011)

(internal quotation marks omitted). A district court imposing a new sentence in the

context of supervised release must weigh the relevant § 3553(a) factors, as directed by 18

U.S.C. § 3583(e), as well as the policies set forth in Chapter Seven of the Sentencing

Guidelines. United States v. Bungar, 478 F.3d 540, 543-44 (3d Cir. 2007). A sentence is

procedurally unreasonable when a district court fails to calculate the Guidelines

sentencing range, or calculates the range incorrectly; treats the Guidelines as mandatory;

bases a sentence on clearly erroneous facts; or fails to adequately explain the sentence

imposed. Friedman, 658 F.3d at 360.

       The sentence given by the District Court here was procedurally reasonable. The

Court calculated the Guidelines range3 and weighed the § 3553(a) factors, expressly

noting the ones it found relevant to Smith’s case. Those factors included: (1) Smith’s

repeated failure to attend appointments and frequent violations of the terms of his

supervised release (as well the reasons that Smith offered for those lapses); (2) Smith’s

history of having served a 10-year sentence following his conviction as a felon in

possession of a firearm; (3) Smith’s personal characteristics, including his substance

abuse and apparent mental health problems; and (4) Smith’s failure to take advantage of

the Court’s attempts to assist him during the course of his supervised release.

       Although a sentencing judge is required to state his reasons for the sentence

imposed, a lengthy and detailed opinion is not required. Rita v. United States, 551 U.S.

       3
        Even though the District Court calculated the Guideline range incorrectly, see
supra note 1, the Court cited the range’s correct upper limit when it imposed the
sentence, and that sentence was within the correct range.
                                             5
338, 356 (2007). The District Court in this case carefully described its consideration of

the § 3553(a) factors and its reasons for imposing the sentence. Because “[t]he record

makes clear the court took the factors into account in sentencing,” United States v.

Cooper, 437 F.3d 324, 329 (3d Cir. 2006), there is no basis for Smith’s claim that the

sentence was procedurally incorrect.

       B.     Substantive Reasonableness

       Smith argues on two separate grounds that the District Court’s revocation of his

supervised release was substantively unreasonable. First, he contends that “revocation is

appropriate only on a second violation, after a finding of a violation” (Appellant’s

Opening Br. at 15), citing a Sentencing Guidelines application note in support of that

contention.4 However, the Guideline itself expressly permits revocation of supervised

release “[u]pon a finding of a Grade C violation,” U.S.S.G. § 7B1.3(a)(2), and makes no

mention of the requirement of a second violation. Moreover, the imposition of a sentence

remains within the sound discretion of the District Court. See Friedman, 658 F.3d at 360

(noting that a sentence is substantively reasonable “unless no reasonable sentencing court

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

district court provided” (internal quotation marks omitted)). In this case, the Court

determined that revocation of Smith’s supervised release, without waiting for a second

Grade C violation, would “prevent him from at least abusing any drugs” and would

       4
        The application note at issue says that “[r]evocation of … supervised release
generally is the appropriate disposition in the case of a Grade C violation by a defendant
who, having been continued on supervision after a finding of violation, again violates the
conditions of his supervision.” U.S.S.G. § 7B1.3 app. n.1. Smith incorrectly cites to
U.S.S.G. § 7B1.4.
                                             6
“clean him out and make him available to at least address his mental health problems and

any drug problems once he’s released from prison.” (App. at 30.) We cannot say that

that was substantively unreasonable, given the pattern of Smith’s behavior while he was

on supervised release.

       Second, Smith contends that the revocation of his supervised release was

substantively unreasonable because the District Court incarcerated him for his controlled

substance lapses. That is not accurate. Because the Court could not definitively say that

the positive drug test result was due to Smith’s ingestion of cocaine, the Court made no

finding as to Smith’s use of drugs on the occasion in question. Rather, the Court found

that Smith had repeatedly failed to comply with the terms of his supervised release and

with the requirements of the STAR program, and the Court revoked Smith’s supervised

release based on that pattern of noncompliance. There was nothing substantively

unreasonable about the Court’s decision in that regard.

III.   Conclusion

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




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