                                                    NOT PRECEDENTIAL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

                                      No. 09-3851
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                MICHAEL DANTZLER,

                                                   Appellant.
                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-04-cr-00003-001)
                         District Judge: Hon. Harvey Bartle, III
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 5, 2010

               Before: SCIRICA, FUENTES and JORDAN, Circuit Judges.

                                (Filed: October 27, 2010)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Michael Dantzler appeals from a September 21, 2009 order of the United States

District Court for the Eastern District of Pennsylvania revoking his supervised release and

sentencing him to 24 months of imprisonment and 12 months of supervised release. We

will affirm.
I.     Background

       On January 6, 2004, a grand jury in the Eastern District of Pennsylvania returned a

one count indictment charging Dantzler with possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1). Dantzler was convicted by a jury and subsequently

sentenced to a 72-month term of imprisonment, followed by 3 years of supervised release.

Dantzler served his period of incarceration and began his period of supervised release in

January 2009.

       In the early-morning hours of August 12, 2009, several months into his supervised

release, Dantzler and his wife, Carla, had an argument regarding an extra-marital affair

that Dantzler was having.1 The argument escalated when Dantzler retrieved a knife from

the kitchen and sliced Carla’s arm. Carla fled the home, got in her car, and called the

police, with Dantzler in pursuit. Ultimately, Dantzler caught up with Carla and instructed

her to “pull the ... car over” or he would “kill [her].” (App. at 50.) Carla pulled her car to

the side of the road and Dantzler then pulled in front of her, put his car in reverse, and

smashed into the front of Carla’s car. Dantzler was subsequently apprehended by police.

       On September 10, 2009, and September 21, 2009, the District Court held hearings

to determine whether Dantzler had violated his supervised release. Testifying on his own

behalf, Dantzler adamantly denied Carla’s account of the events and claimed that it was

Carla who had wielded a knife and pursued him in her car. The District Court found



       1
        For simplicity, we will use Dantzler to refer to the appellant and Carla to refer to
his wife.

                                              2
Carla to be credible, accepted her version of the incident, and concluded that Dantzler had

violated the terms of his supervised release by assaulting his wife.2

          Since Dantzler was charged with a Grade A violation, the Sentencing Guidelines

recommended a sentencing range of 18 to 24 months of imprisonment, based on his

criminal history category of III. U.S.S.G. § 7B1.4(a). The statutory maximum for

Dantzler’s violation was 24 months of imprisonment.3 See 18 U.S.C. § 3583(e)(3). The

Government requested the maximum sentence due to the “significance of what

happened,” the “danger to the community” and to Carla specifically, the “little hope ... for

[Dantzler’s] rehabilitation,” and the high “likelihood of recidivism.” (App. at 197.)

Dantzler, on the other hand, requested a sentence below the statutory maximum, which he

claimed was justified in light of the “good effort” he made after his release from prison by

working at a car wash and trying to open a cleaning business with his wife. (Id. at 199.)

          Following Dantzler’s allocution, the District Court imposed a sentence of 24

months of imprisonment and 12 months of supervised release. In doing so, the Court

stated:

                Mr. Dantzler, I find your statements not credible. I think that
                you have engaged in the abuse of your wife, assault on your
                wife, battering your wife, and this type of conduct has got to

          2
       The Government must establish violation of supervised release by a
preponderance of the evidence. See 18 U.S.C. § 3583(e)(3).
          3
         Since Dantzler’s felon-in-possession conviction is a class C felony, he could not
be sentenced to more than two years for a violation of his supervised release. See 18
U.S.C. § 3853(e)(3) (“[A] defendant whose term is revoked under this paragraph may not
be required to serve on any such revocation ... more than 2 years in prison if such offense
is a class C or D felony ... .”).
                                             3
              stop. And in order to protect society, and not only Ms. Dantzler,
              but the public in general from your conduct, and to punish you
              for what you have done, I’m going to commit you into the
              custody of the Attorney General of the United States, having
              revoked your supervised release, to two years to be followed by
              one year of supervised release.

(App. at 201.) After the District Court entered judgment, Dantzler timely appealed,

alleging that his sentence is procedurally unreasonable.

II.    Discussion 4

       Applying an abuse of discretion standard, United States v. Sevilla, 541 F.3d 226,

230 (3d Cir. 2008), we review for reasonableness a sentence imposed for a violation of

supervised release, United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). A district

court abuses its discretion if it “based its decision on a clearly erroneous factual

conclusion or an erroneous legal conclusion” or if it fails to adequately explain its chosen

sentence. United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc).

However, we review those objections that a defendant failed to raise before the District

Court for plain error. United States v. Watson, 482 F.3d 269, 274 (3d Cir. 2007). Under

plain error review, a defendant must establish that (1) the District Court committed error,

(2) the error was plain, (3) the error affected his substantial rights, and (4) failure to

correct the error would seriously impair the fairness, integrity or public reputation of

judicial proceedings. United States v. Olano, 507 U.S. 725, 736 (1993).




       4
       The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231.
Our appellate jurisdiction arises under 28 U.S.C. § 1291.
                                             4
       Dantzler argues that his sentence is procedurally unreasonable in two respects.

First, he claims that, in sentencing him, the District Court improperly sought to punish

him for the assault itself as opposed to the violation of the terms of his supervised release.

Second, Dantzler asserts that the District Court erred in failing to address his argument

for leniency based on his efforts to gain and maintain employment while on supervised

release. We will review Dantzler’s first argument for plain error, because he failed to

object to his sentence on that basis, and his second argument for abuse of discretion. See

United States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009) (finding that failure to

raise procedural error before the district court resulted in plain error review); Sevilla, 541

F.3d at 231 (holding that where a party properly raises a “meritorious factual or legal

issue” relating to the § 3553(a) factors, the party need not re-raise those issues at the

conclusion of the sentencing proceeding to preserve an objection to the District Court=s

failure to address the issues).

       A.     Sanction for Breach of Trust

       Dantzler argues that the District Court committed a procedural error by

considering the need to “punish [him] for what [he had] done.” (App. at 201.) Dantzler

reads the Court’s pronouncement to reflect an intention to punish him for his violation

conduct, i.e., the assault on his wife, instead of for violating the terms of his supervised

release. In support of his argument, Dantzler contends that, because 18 U.S.C. § 3583(e)

does not expressly incorporate § 3553(a)(2)(A), which instructs a court to consider the

need to “to provide just punishment for the offense,” the District Court erred in

                                               5
considering that factor. The government, on the other hand, argues that the District Court

solely intended “to punish Dantzler for the breach of trust represented by his violation of

supervised release.” (Gov’t’s Ans. Br. at 24.)

       When sentencing a defendant for violating the terms of supervised release,

§ 3583(e) instructs a sentencing court to consider certain factors listed in § 3553(a),

including the nature and circumstances of the offense, the history and characteristics of

the defendant, and the need to protect the public from further crimes of the defendant.

Furthermore, our precedent is clear that, consistent with the policy behind supervised

release, “[a] district court’s primary consideration in handing down a revocation sentence

is the defendant’s breach of trust.” United States v. Dees, 467 F.3d 847, 853 (3d Cir.

2006); see also Bungar, 478 F.3d at 546 (finding the District Court’s imposition of a 60-

month sentence upon revocation of supervised release reasonable in light of the

defendant’s return to criminal activity, extensive history of violent crimes, and recent

evidence of domestic violence, which constituted a “significant breach of the trust that the

Court reposed in him” during its original sentencing); U.S.S.G. Manual Ch. 7, pt. A,

introductory cmt. 3(b) (“[A]t revocation the court should sanction primarily the

defendant’s breach of trust ... .”). Indeed, Dantzler himself recognizes that “revocation

courts may certainly punish breaches of trust... .” (Appellant’s Reply Br. at 7.)

       Reading the District Court’s pronouncement in its entirety, we understand the

Court to be punishing Dantzler for his breach of trust, not his violation conduct. The

District Court first identified Dantzler’s violation conduct (“I think that you have engaged

                                              6
in the abuse of your wife, assault on your wife, battering your wife... .”). (App. at 201.)

The Court then shifted focus to address the relevant § 3553(a) factors in determining the

appropriate sentence to impose in order to fulfill its obligation to “adequately explain the

chosen sentence to allow for meaningful appellate review and to promote the perception

of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). Specifically, the

District Court made findings concerning: the need for the sentence to afford adequate

deterrence to criminal conduct (“I think you have engaged in the abuse of your wife,

assault on your wife, battering your wife, and this type of conduct has got to stop.”) (App.

at 201 (emphasis added)), and the need for the sentence to protect the public from further

crimes of the defendant (“And in order to protect society, and not only Ms. Dantzler but

the public in general from your conduct....”).5 (Id.) The District Court then

acknowledged its ability to punish Dantzler which, as noted above, is appropriate. While

the language on this point is less clear than it could have been, we decline to assume that

the Court failed to appreciate the distinction between sentencing for criminal conduct and

sentencing for a violation of supervised release. In short, Dantzler=s assertion that the




       5
        While the sentencing court is required to “meaningfully consider” the relevant §
3553(a) factors, there is no requirement that the judge “make findings addressed to each
of the relevant factors at the risk of having the sentence vacated and the case remanded
for resentencing.” United States v. Hale, 107 F.3d 526, 530 (7th Cir. 1997). Rather,
§ 3583(e) is satisfied when the sentencing court “[makes] comments reflecting that the
appropriate factors were considered.” Id.

                                              7
District Court punished him for the underlying criminal conduct rather than for the breach

of trust represented by his violation conduct is unpersuasive.6

       B.     Consideration of Arguments in Mitigation

       Dantzler also argues that the District Court erred in failing to address his argument

for mitigation during sentencing. Specifically, Dantzler contends that the Court should

have rewarded his efforts to find employment upon being released from prison, namely,

that he worked at a car wash for two months after being released from custody and

assisted his wife in starting a cleaning business.

       A lengthy explanation is generally not required when a court sentences a defendant

in accordance with the Sentencing Guidelines, such as here. See Rita v. United States,

551 U.S. 338, 356-57 (2007). Indeed, “[t]he appropriateness of brevity or length,

conciseness or detail, when to write, what to say, depends upon circumstances.” Id. at

356. Moreover, a court is not required “to discuss every argument made by a litigant if an

argument is clearly without merit.” United States v. Jackson, 467 F.3d 834, 841 (3d Cir.


       6
        Because we conclude that the District Court sanctioned Dantzler for breaching the
court’s trust by violating the terms of his supervised release, as opposed to punishing him
for the violation conduct itself, we need not address Dantzler’s argument concerning the
proper construction of § 3583(e). Regardless of that statutory construction question, we
are confident district courts understand that, when considering a sentence for a violation
of supervised release, they may not seek to punish any criminal conduct that constitutes
the violation. See Johnson v. United States, 529 U.S. 694, 700 (2000) (“Although []
violations of [supervised release] often lead to reimprisonment, the violative conduct need
not be criminal and need only be found by a judge under a preponderance of the evidence
standard, not by a jury beyond a reasonable doubt. Where the acts of violation are
criminal in their own right, they may be the basis for separate prosecution, which would
raise an issue of double jeopardy if the revocation of supervised release were also
punishment for the same offense.” (citations omitted)).
                                               8
2006) (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). A court must

only recognize and respond to those arguments that are not frivolous. Id.

         The record reflects that Dantzler has exaggerated his efforts to find employment

following his release from prison. At the revocation hearing, Carla testified that Dantzler

was employed at a car wash for only two months following his release from prison before

he quit because he was “sick of this [expletive].” (App. at 36.) He remained unemployed

until the date of the evidentiary hearing six months later, despite his probation officer’s

efforts to help him find a job. Furthermore, the only progress made toward starting a

cleaning business was registering and obtaining a license and dispersing flyers advertising

the business, all of which Carla handled. Dantzler’s precise role in this endeavor is

unknown. Since there is an insufficient factual basis for Dantzler’s assertion that he made

a “good effort” (App. at 199) to find employment while on supervised release, the Court

did not err by not expressly discussing that mitigation argument.

III.     Conclusion

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




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