                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4019


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ANTHONY LEON BOST,

                    Defendant - Appellant.



                                      No. 17-4020


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ANTHONY LEON BOST,

                    Defendant - Appellant.



Appeals from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00302-RJC-DSC-1;
3:10-cr-00171-RJC-1)


Submitted: June 29, 2017                                         Decided: July 11, 2017
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA, Charlotte,
North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, Amy E.
Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          While on supervised release, Anthony Leon Bost committed the offenses of armed

bank robbery and aiding and abetting the same, in violation of 18 U.S.C. §§ 2, 2113(a),

(d) (2012); using and carrying a firearm in relation to a crime of violence and aiding and

abetting the same, in violation of 18 U.S.C. §§ 2, 924(c) (2012); and conspiracy to

commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (2012). Bost pled guilty

to the offenses and admitted to violating his supervised release.          The district court

sentenced Bost to a total of 259 months’ imprisonment for his crimes, revoked Bost’s

supervised release, and sentenced Bost to a consecutive term of 24 months’ imprisonment

for the supervised release violation. The district court also ordered Bost to pay restitution

to the victims of his robberies, including Wells Fargo Bank (Wells Fargo), less any

amount recovered by law enforcement. On appeal, Bost contends that the district court

abused its discretion by ordering Bost to pay restitution to Wells Fargo for money that

was recovered by law enforcement. Bost also argues that his revocation sentence is

plainly procedurally and substantively unreasonable. Finding no reversible error, we

affirm.

          Bost first argues that the district court erred by ordering him to repay Wells Fargo

for money that police officers recovered immediately after Bost and his accomplices

robbed a branch of the bank. We review a restitution order for an abuse of discretion.

United States v. Freeman, 741 F.3d 426, 431 (4th Cir. 2014). Our review of the record

reveals that the district court did not order Bost to repay Wells Fargo for the recovered

money. The district court ordered that Bost pay restitution to Wells Fargo “[l]ess any

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amount recovered by law enforcement” and limited the “[t]he victims’ recovery to the

amount of their loss.” Because the district court did not order Bost to repay Wells Fargo

more than the bank’s actual loss, we discern no abuse of discretion. Cf. United States v.

Hanna, 630 F.3d 505, 512 (7th Cir. 2010) (affirming similar restitution order).

       Next, Bost challenges both the procedural and substantive reasonableness of his

revocation sentence. 1 “A district court has broad discretion when imposing a sentence

upon revocation of supervised release,” United States v. Webb, 738 F.3d 638, 640 (4th

Cir. 2013), and thus, in examining a revocation sentence, we strike “a more deferential

appellate posture concerning issues of fact and the exercise of discretion than

reasonableness review for guidelines sentences,” United States v. Moulden, 478 F.3d 652,

656 (4th Cir. 2007) (internal quotation marks omitted). “We will affirm a revocation

sentence if it is within the statutory maximum and is not plainly unreasonable.” Webb,

738 F.3d at 640 (internal quotation marks omitted). In conducting reasonableness review

in the supervised release revocation context, “we follow generally the procedural and

substantive considerations” used in reviewing original sentences.          United States v.

Crudup, 461 F.3d 433, 438 (4th Cir. 2006). If we find a sentence to be unreasonable, we

must then decide “whether it is plainly so.” Webb, 738 F.3d at 640 (internal quotation

marks omitted).


       1
        To the extent that Bost’s opening brief may challenge the district court’s decision
to revoke his supervised release, we find that the district court did not abuse its discretion
because Bost admitted to violating his supervised release. See United States v. Padgett,
788 F.3d 370, 373 (4th Cir. 2015).


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       A revocation sentence is procedurally reasonable if the district court adequately

explains the sentence after considering the policy statements in Chapter Seven of the

Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a) (2012) factors. See 18

U.S.C. § 3583(e) (2012); United States v. Thompson, 595 F.3d 544, 546-47 (4th Cir.

2010). “A court need not be as detailed or specific when imposing a revocation sentence

as it must be when imposing a post-conviction sentence, but it still must provide a

statement of reasons for the sentence imposed.” Thompson, 595 F.3d at 547 (internal

quotation marks omitted).

       A revocation sentence is substantively reasonable if the district court “sufficiently

state[s] a proper basis” for concluding that the defendant should receive the sentence

imposed, up to the statutory maximum. Crudup, 461 F.3d at 440. A sentence within the

policy statement range provided by the Guidelines is presumed substantively reasonable.

United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015).

       Beginning with the procedural reasonableness of Bost’s revocation sentence, Bost

avers that the district court did not recite the applicable § 3553(a) factors when imposing

sentence, and Bost specifically faults the district court for failing to consider “the need to

avoid unwarranted sentencing disparities.” 18 U.S.C. § 3553(a)(6). We find Bost’s

argument unconvincing because the district court was not required to “robotically tick

through § 3553(a)’s every subsection,” and in any event, the district court discussed

several of the pertinent § 3553(a) factors, such as the need to protect the public, Bost’s

history of supervised release violations, and the circumstances of the instant violation.

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). In addition—and contrary

                                              5
to Bost’s contention—the district court explicitly addressed the need to avoid

unwarranted sentencing disparities.

       Bost also suggests that his revocation sentence is procedurally unreasonable

because the district court ordered the sentence to run consecutive to his 259-month

sentence without addressing U.S. Sentencing Guidelines Manual § 5G1.3 (2016).

Guideline § 5G1.3(d), p.s., provides that a sentence “may be imposed to run concurrently,

partially concurrently, or consecutively to [a] prior undischarged term of imprisonment to

achieve reasonable punishment.” Subsection (d), p.s., “applies in cases in which the

defendant was on federal . . . supervised release at the time of the . . . offense and has had

such . . . supervised release revoked.”    USSG § 5G1.3 cmt. n.4(C).           While USSG

§ 5G1.3’s commentary directs a district court to consider several factors in exercising its

discretion to impose a concurrent or consecutive sentence, the commentary recommends

“that the sentence for the . . . offense be imposed consecutively to the sentence imposed

for the revocation.” USSG § 5G1.3 cmt. n.4(A), (C). Similarly, USSG § 7B1.3(f), p.s.,

states that a “term of imprisonment imposed upon the revocation of . . . supervised

release shall be ordered to be served consecutively to any sentence of imprisonment that

the defendant is serving, whether or not the sentence of imprisonment being served

resulted from the conduct that is the basis of the revocation.”

       Although the district court did not mention § 5G1.3 when imposing Bost’s

revocation sentence, the district court was mindful of the circumstances that USSG

§ 5G1.3(d)’s commentary directs a district court to contemplate. In particular, the district

court discussed several of the relevant § 3553(a) factors, and having imposed the

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259-month sentence at the same hearing, the district court was certainly aware of the type

and length of the undischarged sentence, the time served on the undischarged sentence,

and the time likely to be served before release.       See USSG § 5G1.3 cmt. n.4(A).

Therefore, we find no procedural error in the district court’s failure to mention USSG

§ 5G1.3. 2 See United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011).

      Finally, Bost argues that his revocation sentence is substantively unreasonable for

three reasons: (1) a codefendant received a concurrent revocation sentence, (2) the state

charges against Bost that formed the bases for the revocation petition were dismissed, and

(3) the district court imposed a 259-month sentence for the same conduct underlying the

revocation sentence. We conclude that Bost has failed to rebut the presumption of

reasonableness that is afforded to his below-policy-statement-range sentence. See United

States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). With respect to Bost’s first

argument, the district court reasonably rejected Bost’s request for a sentence similar to

that of his codefendant because Bost committed an additional robbery and acted more

violently than his codefendant. As for Bost’s second argument, the dismissal of the state

charges is hardly a mitigating factor since those charges were apparently dismissed as a

result of the Government’s election to federally prosecute Bost for the robberies. Bost’s

      2
         Even assuming procedural error, we conclude that the error is harmless in light
of the district court’s explicit rejection of Bost’s argument for a concurrent sentence and
the Guidelines’ recommendation for a consecutive sentence in this case. See United
States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012) (explicating harmless error standard);
United States v. Brack, 651 F.3d 388, 392 n.2 (4th Cir. 2011) (observing Guidelines’
policy statements and commentary entitled to controlling weight absent conflict with
statute or Guidelines themselves).


                                            7
final substantive reasonableness challenge likewise fails because the district court’s

primary purpose in imposing the revocation sentence was not to punish Bost for his

criminal conduct alone, but rather to sanction his repeated breaches of the court’s trust.

See Moulden, 478 F.3d at 658-59 (observing that repeated violations of supervised

release conditions may be considered in crafting revocation sentence).

       For these reasons, we conclude that the district court did not abuse its discretion in

entering the restitution order and that Bost has failed to show that his revocation sentence

is plainly unreasonable. Accordingly, we affirm the district court’s judgments. 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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