                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4935


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN KELVIN ELLIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:06-cr-00232-REP-1)


Submitted:   June 18, 2014                    Decided:   July 1, 2014


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant.    Jessica D. Aber, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             John     Kelvin        Ellis   appeals       the     twenty-four-month

sentence     imposed    upon    revocation        of    his    term     of    supervised

release.      Ellis’ counsel filed a brief pursuant to Anders v.

California,     386    U.S.    738    (1967),     stating       that    there     are    no

meritorious     grounds       for    appeal,     but    questioning          whether    the

sentence imposed is plainly procedurally unreasonable.                             Ellis

was advised of his right to file a pro se supplemental brief,

but he did not file one.            We affirm.

             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).                          Thus, we

will   not    disturb     a     sentence        imposed       after     revocation       of

supervised release that is within the prescribed statutory range

and is not plainly unreasonable.                 United States v. Crudup, 461

F.3d 433, 437-39 (4th Cir. 2006).                In making this determination,

“we    follow       generally         the       procedural        and        substantive

considerations” used in reviewing original sentences.                             Id. at

438.

             A sentence is procedurally reasonable if the district

court has considered the policy statements contained in Chapter

Seven of the Sentencing Guidelines and the applicable 18 U.S.C.

§   3553(a)    (2012)     factors,      id.     at     439,    and     has    adequately

explained the sentence chosen, though it need not explain the

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sentence       in     as    much     detail       as     when    imposing         the     original

sentence.           Thompson,         595       F.3d     at     547.          A    sentence       is

substantively reasonable if the district court states a proper

basis   for     its        imposition      of     a    sentence       up    to    the    statutory

maximum.       Crudup, 461 F.3d at 440.                       If, based on this review,

the appeals court decides that the sentence is not unreasonable,

it should affirm.            Id. at 439.

              In the initial inquiry, we take a more deferential

posture concerning issues of fact and the exercise of discretion

than    when     we     apply       the     reasonableness            review      to     sentences

imposed after a criminal conviction.                          United States v. Moulden,

478 F.3d 652, 656 (4th Cir. 2007).                       Only if we find the sentence

unreasonable must we decide whether it is “plainly” so.                                    Id. at

657.

              Ellis         first     contends         that     his    supervised          release

revocation sentence is plainly procedurally unreasonable because

the court failed to calculate his criminal history category.

Ellis’ original sentence was not a Guidelines sentence and no

criminal      history        category       was       determined      at    the    time    he    was

originally      sentenced.            Under       these       “rare”       circumstances,        the

Policy Statement directs that “the court shall determine the

criminal history category that would have been applicable at the

time    the    defendant        was       originally       sentenced         to    the    term   of



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supervision.”        U.S. Sentencing Guidelines Manual § 7B1.4 cmt.

n.1, p.s. (2005).

             Ellis would have been in criminal history category VI

at   the    time     he    was     originally           sentenced         to    a    term     of

supervision.           His       supervised        release           violation,           namely

commission of a crime (a state offense of possession with intent

to   distribute      cocaine),       was     a     Grade       A    supervised           release

violation.       See USSG § 7B1.1(a)(1) (establishing that a state

controlled substance offense punishable by twenty years or more

in prison is a Grade A supervised release violation).                               A Grade A

violation and placement in criminal history category VI yields a

policy     statement      range    of   thirty-three           to    forty-one           months’

imprisonment.        USSG § 7B1.4(a) (Revocation Table).                             However,

because    the   statutory        maximum    term       was    two       years,     18    U.S.C.

§ 3583(e)(3) (2012), the maximum sentence the court could impose

was twenty-four months.              See USSG § 7B1.4(b)(1) (substituting

statutory     maximum      for     Policy        Statement         range       “[w]here       the

statutorily      authorized       maximum        term    of    imprisonment          that     is

imposable     upon   revocation         is   less       than       the    minimum        of   the

applicable [Policy Statement] range”).                        Therefore, any failure

by the district court to calculate the criminal history category

and resulting Policy Statement range had no impact on Ellis’

sentence and did not render the sentence plainly procedurally

unreasonable.

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              Next,    Ellis     argues    that    his     sentence       was    plainly

procedurally unreasonable because the district court relied on a

prohibited      statutory       sentencing     factor,      namely      the     need    to

promote respect for the law.               The statute governing supervised

release provides that a court can revoke supervised release and

impose    a     term     of     imprisonment       after     considering        certain

enumerated 18 U.S.C. § 3553(a) factors.                    18 U.S.C. § 3583(e)(3)

(2012).     Section 3583(e) lists all the § 3553(a) factors except

for those in § 3553(a)(3) (“the kinds of sentences available”)

and those in § 3553(a)(2)(A) (“the need for the sentence imposed

to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense”).

              In imposing the twenty-four-month sentence, the court

considered      §      3553(a)    factors      enumerated         in    § 3583(e)(3),

including the need to protect the public and to deter Ellis and

others    from        future     criminal      conduct.           See      18     U.S.C.

§ 3553(a)(2)(B),         (C).      However,       the    court     also       explicitly

considered the need to promote respect for the law, a factor

derived from 18 U.S.C. § 3553(a)(2)(A), which the district court

may not consider under § 3583(e)(3).                    See Crudup, 461 F.3d at

439 (stating that a court may not impose a revocation sentence

based    upon   §     3553(a)    factors    that    are     not   enumerated       in    §

3583(e)).



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           This    court      has    recently         held,    however,     that   “a

district   court’s    reference      to   the     §    3553(a)(2)(A)       sentencing

considerations, without more, [does not] automatically render a

revocation sentence unreasonable.”                United States v. Webb, 738

F.3d 638, 642 (4th Cir. 2013).                Although in Webb we warned that

a revocation sentence should not be “based predominately on the

[§ 3553(a)(2)(A) factors], . . .,” we also noted that “mere

reference to such considerations does not render a revocation

sentence   procedurally          unreasonable         when    those   factors      are

relevant to, and considered in conjunction with, the enumerated

§ 3553(a) factors.”        Id.

           Here,     the     district         court’s     consideration       of   an

impermissible factor went hand-in-hand with its consideration of

appropriate § 3553(a) factors.                While the court cited the need

for Ellis’ sentence to promote respect for the law, it did so in

conjunction with authorized § 3553(a) factors, namely the need

to protect the public and provide deterrence, both to Ellis and

others.     We    therefore      conclude,      pursuant      to   Webb,    that   the

district court’s consideration of a prohibited § 3553(a)(2)(A)

factor was not plainly unreasonable.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm.           This court requires that counsel

inform Ellis, in writing, of his right to petition the Supreme

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Court   of   the   United     States   for    further    review.      If    Ellis

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation. Counsel’s

motion must state that a copy of the motion was served on Ellis.

We   dispense   with   oral    argument      because    the   facts   and   legal

contentions     are   adequately   presented     in     the   materials     before

this court and argument would not aid the decisional process.



                                                                       AFFIRMED




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