                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 11-2585
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                 RICHARD DAVIS,
                                                       Appellant
                                  _______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                      (D.C. Action No. 08-cr-00612-003)
                   District Judge: Honorable José L. Linares
                               _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 28, 2011
                                 _______________

      Before: SLOVITER, GREENAWAY, JR., and ALDISERT, Circuit Judges.

                          (Opinion Filed: October 31, 2011)
                                 _______________

                                     OPINION
                                 ________________

GREENAWAY, JR., Circuit Judge.

      Appellant Richard Davis (―Davis‖) appeals the District Court’s June 2, 2011

Judgment of Conviction, revoking his supervised release and sentencing him to twelve

months and one day of imprisonment. Davis argues that the sentence is substantively
infirm. Specifically, Davis argues that the District Court abrogated its responsibility by

not seeking and implementing an alternative means of punishment, such as an intensive

residential outpatient program.

          For the following reasons, we will affirm the District Court’s Judgment.

                                     I.   BACKGROUND

          We write primarily for the benefit of the parties and shall recount only the

essential facts. Davis is a convicted felon, initially sentenced by the District Court to

thirty months of imprisonment for conspiracy to steal and convert treasury checks.

Within months of his release, Davis failed to comply with the terms of supervised release.

Davis failed to meet, at the appointed times, with his probation officer, failed to give his

probation officer a new address, and committed a crime leading to his arrest and a plea of

guilty.

          Following his State court plea, Probation sought the intervention of the District

Court by filing a Petition for Warrant or Summons for Offender Under Supervision. The

Petition specified five violations. Davis pled to Violation 3 — committing another crime

(the shoplifting offense). The District Court sentenced Davis to twelve months and one

day of incarceration with no further term of supervised release for his Grade C violation.

He filed a timely notice of appeal.

                 II.    JURISDICTION AND STANDARD OF REVIEW

          The District Court had subject matter jurisdiction, pursuant to 18 U.S.C. § 3231

and § 3583(e)(3), to determine whether to revoke a sentence of supervised release. See

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United States v. Dees, 467 F.3d 847, 851 (3d Cir. 2006).

         We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s final

judgment of conviction and sentence and under 18 U.S.C. § 3742(a) to review the

sentence imposed upon a defendant after revocation of supervised release.

         A district court’s sentencing procedure is reviewed for abuse of discretion. See

Gall v. United States, 552 U.S. 38, 51 (2007). On abuse of discretion review, the Court

of Appeals gives due deference to the district court’s sentencing decision. See id.

District courts have discretion when sentencing and appellate review is limited to

determining whether the sentence imposed is reasonable. See id.

        Our appellate review proceeds in two stages. It begins by ensuring that the
        district court committed no significant procedural error, such as failing to
        calculate (or improperly calculating) the Guidelines range, treating the
        Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting
        a sentence based on clearly erroneous facts, or failing to adequately explain
        the chosen sentence and –– including an explanation for any deviation from
        the Guidelines range.

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (quoting Gall,
552 U.S. at 51).

         Assuming that the district court’s sentencing decision is procedurally
         sound, the appellate court should then consider the substantive
         reasonableness of the sentence imposed under an abuse-of-discretion
         standard. When conducting this review, the court will, of course, take into
         account the totality of the circumstances, including the extent of any
         variance from the Guidelines range. If the sentence is within the
         Guidelines range, the appellate court may, but is not required to, apply a
         presumption of reasonableness.

Gall, 552 U.S. at 51 (citing Rita v. United States, 551 U.S. 338, 347 (2007)).1

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    Davis claims that the District Court’s sentence was substantively unreasonable. He does

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                                    III.   ANALYSIS

       The substantive component of a reasonableness review requires the appellate court

―to take into account the totality of the circumstances, including the extent of any

variance from the Guidelines range.‖ See United States v. Lychock, 578 F.3d 214, 217

(3d Cir. 2009). In looking at the totality of the circumstances, we determine whether a

reasonable court would have applied the same sentence as the district court. See id. at

219 n.2.

       Davis contends that the District Court’s sentence was substantively

unreasonable because it sent him to prison for a Grade C technical violation of his

supervised release rather than placing him in a residential outpatient program as

he requested. We reject Davis’s argument.

       We have previously held that a ―[s]entence is imposed for violations of

supervised release primarily to sanction the defendant’s breach of trust while

taking into account, to a limited degree, the seriousness of the underlying

violation and the criminal history of the violator.‖ United States v. Bungar, 478

F.3d 540, 544 (3d Cir. 2007) (internal citations and quotations omitted).

       Although Davis was charged with a shoplifting offense, a Grade C

violation, he has an extensive adult history of criminal convictions, and at least

five separate violations and/or revocations of probation. Davis’s myriad criminal



not argue that the District Court committed any procedural error. Therefore, our review
will focus only on the determination of substantive unreasonableness.

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convictions include burglary, possession of marijuana with intent to sell,

possession of cocaine, shoplifting, theft, escape in the 3rd degree, receiving stolen

property, and loitering to obtain/sell a controlled dangerous substance. His Pre

Sentence Investigation Report (PSR) reflected 40 criminal history points and a

Criminal History Category of VI. The appropriate advisory Guidelines range for

a Category VI offender is 8 to 14 months of imprisonment.

      The District Court sentence of twelve months and one day of imprisonment

was within the advisory Guidelines range. At the hearing, the District Court

discussed Davis’s repeated breaches of trust and pointed out that it could revoke

supervised release and sentence Davis to prison. Davis’s counsel addressed the

Court and stated that Davis’s criminal activities were due to his dependence on

cocaine and alcohol. He further stated that Davis had never received drug

treatment and would benefit from an intensive residential program. Although

Davis argues now that the District Court ignored his ―desperate need for

treatment,‖ the record indicates otherwise. The District Court addressed Davis’s

drug issues, and said that Davis had made the same statements seeking assistance

when he was originally sentenced. (App. Vol. II, 40.) The District Court also

found that Davis had violated the Court’s trust before, and noted that ―there has

been a history, as this Court is aware of in the prior case of the drug issue and

alcohol.‖ Id at 43.




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       The District Judge addressed Davis’s need for drug treatment while

incarcerated when he stated:

       I think Mr. Davis, until you take care of that [drug] problem, you are going
       to continue to be back here, and the sentences are going to get worse and
       worse along the way. You are in the federal system now, and you get
       serious time when you violate conditions of supervised release and when
       you violate federal laws.

Id. at 44.

       In addition, the District Court stated that it would make a recommendation to the

Bureau of Prisons that drug and alcohol treatment, as well as mental health treatment, be

a part of the sentence.

       Finally, with respect to Davis’s challenge to the reasonableness of his sentence, we

are satisfied that the District Court adequately considered the applicable § 3553(a) factors

in sentencing Davis. See Tomko, 562 F.3d at 568 (―we will affirm [the sentence] unless

no reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided‖.)

                                  IV.    CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s judgment.




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