                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-3808
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  MATTHEW NABER,
                                                 Appellant
                                    ____________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                             (D.N.J. No. 2-04-cr-00173-001)
                      District Judge: Honorable Susan D. Wigenton
                                       ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 4, 2018

              Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.

                               (Filed: September 11, 2018)
                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Matthew Naber appeals the District Court’s judgment of sentence imposing a 60-

month term of imprisonment. We will affirm.1

       This appeal raises one issue: was Naber’s sentence substantively unreasonable?

Our highly deferential standard of review requires us to affirm 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). We hold that Naber has failed to carry this heavy burden. See

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

       While on supervised release for a prior federal offense, Naber was convicted in

New Jersey state court of possession with intent to distribute controlled substances. He

was sentenced to ten years’ imprisonment, with parole eligibility after five years. Soon

after Naber completed his state prison term, the Government petitioned the District Court

to revoke his federal supervised release and Naber pleaded guilty to a Grade A violation.

United States Sentencing Guidelines (USSG) § 7B1.1(a)(1) (2016). Naber’s advisory

Guidelines range was 51 to 63 months, USSG § 7B1.4(a), and the District Court imposed

the statutory maximum sentence of 60 months’ imprisonment. 18 U.S.C. § 3583(e)(3).

       Naber’s principal argument on appeal is that the District Court punished him for

violating New Jersey law rather than for the “breach of trust” that defines the separate

wrong of a supervised release violation. Naber Br. 12. Naber argues that the District


       1
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

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Court focused on “the seriousness of the underlying violation and the criminal history of

the violator” instead of taking those considerations into account only “to a limited

degree” and “sanction[ing] primarily [Naber’s] breach of trust” as the Sentencing

Guidelines require. Naber Br. 20. See USSG Ch. 7, Pt. A, § 3(b) (2016).

       A complete review of the record belies Naber’s argument. It is true that the

District Court noted “the seriousness of what happened here” and its responsibility “to

impose a sentence . . . to reflect the seriousness of what occurred here.” App. 31–32;

Naber Br. 11. But those comments do not prove that the District Court wrongly focused

on the underlying state crime. In fact, the District Court explicitly distinguished its

sentence for Naber’s violation of his conditions of supervised release from the state

sentence that triggered the violation. It did so by connecting “the seriousness of what

happened here” to “the fact that [Naber was] on supervised release and yet felt it was

acceptable in some way, shape or form to engage in further criminal conduct.” App. 31.

The District Court made clear that its sentence was meant to address Naber’s violation of

the conditions of his supervised release, reflect his extensive criminal history, and deter

him from future violations.

       Naber responds that the 60-month federal sentence must have been to punish him

for his state offense because he served equal time on the state conviction. There are at

least two problems with this argument. First, the state court sentenced Naber to ten years’

imprisonment, twice the length of time imposed by the District Court. Second, the fact

that Naber’s federal sentence was equal to the parole-ineligible time he served in state

prison does not mean that the federal sentence was punishment for the state crime. This is


                                              3
especially true where, as here, the federal sentence is within the Sentencing Guidelines

for the violation. See, e.g., United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006)

(affirming sentence upon revocation of supervised release that “exceed[ed] the initial

sentence of imprisonment”) (emphasis added).

       The record also reflects that the District Court carefully assessed Naber’s case in

light of the factors enumerated in 18 U.S.C. § 3553(a). The Court acknowledged its

“responsibility . . . to impose a sentence that is sufficient but not greater than necessary”

and noted that the sentence “must avoid unwarranted sentencing disparities[,] . . . protect

the community[,] and not only deter others but [also] deter [Naber] specifically.” App.

30. The Court acknowledged the effort and progress Naber had made “to be a productive

member of society” during his initial period of supervised release, but recognized that it

had to consider the nature and circumstances of the offense to which Naber pleaded

guilty and his individual history and characteristics, including his extensive criminal

history. App. 31. This was “more than a rote recitation of the § 3553(a) factors” and

demonstrates the District Court’s thorough consideration and application of these factors

in its decision to impose a sentence within Naber’s Sentencing Guidelines range. Tomko,

562 F.3d at 567.

       For the reasons stated, we will affirm Naber’s judgment of sentence.




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