                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4284


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH JOSEPH JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:91-cr-00529-DCN-2)


Submitted:   March 21, 2011                 Decided:   April 6, 2011


Before NIEMEYER and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, Jimmie Ewing, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Kenneth Joseph Johnson appeals his sixty-three month

sentence imposed on revocation of supervised release.                           He argues

that there was an insufficient factual basis for revocation and

that   the    district      court’s       sentence      was     plainly       unreasonable

because      the    court    failed       to       consider     the    U.S.     Sentencing

Guidelines Manual Chapter 7 policy statements in formulating his

within-Guidelines sentence.            We affirm.



                                 I.   Factual Basis

              This court reviews the district court’s decision to

revoke    a    defendant’s        supervised          release     for     an    abuse   of

discretion.        United    States       v.       Pregent,     190     F.3d    279,    282

(4th Cir. 1999).          The district court need only find a violation

of a condition of supervised release by a preponderance of the

evidence.          18   U.S.C.    § 3583(e)(3)         (2006);    Johnson       v.   United

States, 529 U.S. 694, 700 (2000).                      This court reviews factual

determinations          informing     the          conclusion     that     a     violation

occurred for clear error.             United States v. Carothers, 337 F.3d

1017, 1019 (8th Cir. 2003).

              Johnson     notes    that     his      supervised       release    violation

was based on his recent federal conviction, and that his appeal

of that conviction was pending before this court at the time he

appealed his supervised release revocation and sentence.                                He

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asserts     that      if       the    conviction           is     vacated,         the    basis     for

revocation         will    no    longer       be       valid.           We    recently      affirmed

Johnson’s underlying conviction and sentence.                                   United States v.

Johnson, No. 09-4280, 2011 WL 288522 (4th Cir. Jan. 31, 2011)

(unpublished).             Accordingly,            there         is    no     question      that    an

adequate factual basis supported the district court’s revocation

decision.



                                        II.      Sentence

               A    sentence         imposed       after         revocation        of     supervised

release    should         be    affirmed         if     it      is     within      the     applicable

statutory      maximum         and    is   not         plainly         unreasonable.          United

States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).                                         We

first     review      the       sentence         for       reasonableness,               “follow[ing]

generally      the       procedural        and     substantive              considerations         that

[are] employ[ed] in [the] review of original sentences, . . .

with    some       necessary         modifications           to       take    into       account    the

unique nature of supervised release revocation sentences.”                                          Id.

at   438-39;       see     United      States         v.     Finley,         531   F.3d     288,    294

(4th Cir. 2008)            (“In       applying             the        ‘plainly       unreasonable’

standard, we first determine, using the instructions given in

Gall [v. United States, 552 U.S. 38 (2007)], whether a sentence

is ‘unreasonable.’”).



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                 A    sentence     is    reviewed         for   reasonableness     under    an

abuse of discretion standard.                         Gall, 552 U.S. at 51.              This

review      requires         consideration           of     both    the    procedural      and

substantive           reasonableness       of    a     sentence.          Id.;   see   United

States      v.       Lynn,   592    F.3d      572,     575      (4th Cir. 2010).        After

determining whether the district court properly calculated the

defendant’s advisory guideline range, we must decide whether the

district court considered the § 3553(a) factors, analyzed the

arguments presented by the parties, and sufficiently explained

the selected sentence.                  Lynn, 592 F.3d at 575-76; see United

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).                                   If the

sentence is free of significant procedural error, the appellate

court reviews the substantive reasonableness of the sentence.

Lynn, 592 F.3d at 575; United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).

                 Although the district court must consider the Chapter

7   policy           statements    and     the    requirements        of    § 3553(a)      and

§ 3583, “the sentencing court retains broad discretion to revoke

a defendant’s probation [or supervised release] and impose a

term   of    imprisonment          up    to     the    statutory      maximum.”        United

States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (citing

Crudup, 461 F.3d at 439).

                 Johnson concedes that because he did not request a

different sentence or object to his sentence, our review is for

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plain error.       See Lynn, 592 F.3d at 577 (applying plain error

review   to    a   claim    that   sentence       was   unreasonable    where   the

defendant did not request a different sentence); Fed. R. Crim.

P. 52(b).      To establish plain error, Johnson must show that an

error occurred, that the error was plain, and that the error

affected his substantial rights.                United States v. Muhammad, 478

F.3d 247, 249 (4th Cir. 2007).                 Even if Johnson satisfies these

requirements,      “correction      of   the      error    remains    within    [the

court’s] discretion, which [the court] should not exercise . . .

unless the error seriously affect[s] the fairness, integrity or

public   reputation        of   judicial       proceedings.”     Id.     (internal

quotation marks and citation omitted).

              We have reviewed the record and conclude that Johnson

has not satisfied this strict standard.                     He claims that the

district court did not consider the Chapter 7 policy statements.

While the court did not explicitly discuss the statements, we

have held that the district court need not discuss the Chapter 7

statements, so long as it is clear from the record that the

court considered the statements.                See United States v. Davis, 53

F.3d 638, 642 (4th Cir. 1995) (district court “need not engage

in   ritualistic       incantation         in      order    to   establish      its

consideration of [the Chapter 7 statements]”).                       Our review of

the record leads us to conclude that the court did consider the



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Chapter   7    statements,    and     the       court    did    not   err,      let   alone

plainly so.

              Accordingly, we affirm the judgment of the district

court   revoking    supervised      release        and    imposing      a    sixty-three

month   sentence.      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




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