US v. Arjay Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:07-cr-00022-F-1 Copies to all parties and the district court/agency. [999848335].. [15-4397]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4397

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARJAY ORLANDO BROWN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00022-F-1)

Submitted:

March 15, 2016

Decided:

June 9, 2016

Before KING, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Sonya M. Allen,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas
G.
Walker,
United
States
Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Arjay Orlando Brown appeals the district court’s judgment
revoking his supervised release and sentencing him to 35 months’
imprisonment.

Brown first contends that his sentence is plainly

procedurally unreasonable because the court failed to adequately
explain the reasons for the selected sentence and considered an
impermissible sentencing factor.

Brown further argues that his

sentence is substantively unreasonable as it is greater than
necessary to achieve the purposes of sentencing.
“A

district

court

has

broad

discretion

We affirm.
when

sentence upon revocation of supervised release.”
v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).

imposing

a

United States

We will affirm a

sentence imposed after revocation of supervised release if it is
within

the

unreasonable.

applicable

plainly

and

not

plainly

In determining whether a revocation sentence

unreasonable,

unreasonableness,
substantive

maximum

United States v. Crudup, 461 F.3d 433, 439–40

(4th Cir. 2006).
is

statutory

generally

considerations

original sentences.

we

first

assess

following
that

are

Id. at 438–39.

at

the

the
issue

sentence

procedural
in

review

for
and
of

In this initial inquiry, we

take 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).
2

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if

we

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find

the

sentence

whether it is “plainly” so.
A

supervised

release

reasonable

if

the

statements

contained

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unreasonable

we

consider

Id. at 657.
revocation

district
in

will

court

Chapter

sentence

is

procedurally

considered

Seven

of

the

the

policy

Sentencing

Guidelines and the 18 U.S.C. § 3553(a) (2012) factors applicable
to revocation sentences.

Crudup, 461 F.3d at 439.

The district

court also must provide a statement of reasons for the sentence
imposed,

but

that

explanation

“need

not

be

as

detailed

or

specific when imposing a revocation sentence as it must be when
imposing

a

post-conviction

sentence.”

United

States

v.

Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
In exercising its sentencing discretion, the district court
“should

sanction

primarily

the

defendant’s

breach

of

trust,

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

the

underlying

violator.”

violation

and

Webb, 738 F.3d at 641.

the

criminal

history

of

the

In determining the length of

a sentence imposed upon revocation of supervised release, 18
U.S.C. § 3583(e) (2012) requires a sentencing court to consider
all but two of the factors listed in 18 U.S.C. § 3553(a).

The

excluded factors include, as relevant here, the need for the
sentence “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the

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18 U.S.C. § 3553(a)(2)(A); see 18 U.S.C. § 3583(e);

Crudup, 461 F.3d at 439.
We have recognized that, “[a]lthough § 3583(e) enumerates
the factors a district court should consider when formulating a
revocation sentence, it does not expressly prohibit a court from
referencing other relevant factors omitted from the statute.”
Webb, 738 F.3d at 641.

Thus, while the court may not impose a

revocation sentence “based predominately” on the § 3553(a)(2)(A)
factors, “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.”
Brown

first

assigns

Id. at 642.

error

to

the

district

explanation for its upward variant sentence.

court’s

Brown preserved

his challenge to the court’s explanation “[b]y drawing arguments
from § 3553 for a sentence different than the one ultimately
imposed.”

United States v. Lynn, 592 F.3d 572, 578 (4th Cir.

2010).
Brown’s argument fails on this record.

After announcing

the 35-month sentence, the court recognized Brown’s numerous and
varied

violations

of

the

conditions

of

his

release,

which

continued even after the court gave Brown a second chance at
compliance.
that

it

was

The court’s comments, however brief, thus reveal
focused

primarily
4

on

appropriate

sentencing

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considerations,

including

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Brown’s

history

and

characteristics

and the need to deter future violations of supervised release
orders.

See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), 3583(e).

And

although not particularly identified as such, it is clear that
Brown’s

ongoing

violative

conduct

amounted

to

a

significant

breach of the trust and leniency the court had extended Brown at
his prior revocation hearing.

See U.S. Sentencing Guidelines

Manual ch. 7, pt. A(3)(b), p.s. (2007).

We thus reject this

aspect of Brown’s challenge to the procedural reasonableness of
his upward variant sentence.
Brown

next

consideration
§ 3583(e).

of
We

assigns
one
review

of

reversible
the

this

error

§ 3553(a)
argument

to

factors

for

plain

the

court’s

excluded
error

from

because

Brown did not object to the district court’s consideration of
this sentencing factor at the revocation hearing.
v. Lemon, 777 F.3d 170, 172 (4th Cir. 2015).

United States

To establish plain

error, Brown must show “(1) that the district court erred, (2)
that the error is clear or obvious, and (3) that the error
affected his substantial rights, meaning that it affected the
outcome of the district court proceedings.”
640–41 (internal quotation marks omitted).

Webb, 738 F.3d at
Even if Brown makes

such a showing, “we retain discretion whether to recognize the
error

and

will

deny

relief

unless

the . . . error

seriously

affects the fairness, integrity or public reputation of judicial
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proceedings.”

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Id. at 641 (alteration and internal quotation

marks omitted).
Despite Brown’s argument to the contrary, we conclude that
the disfavored factor cited here — the need for the sentence to
promote respect for the law — was not a focal point for the
court’s

sentencing

decision.

Indeed,

it

was

mentioned

only

briefly, and immediately before the court discussed in greater
detail

how

Brown’s

chronic

and

repeated

violations

of

his

supervised release led the court to conclude that the longest
available sentence was the appropriate sentence to impose.

We

thus discern no error, let alone plain error, arising from the
court’s mention of the need for the sentence to promote respect
for the law.
Finally, there is Brown’s assertion that his sentence is
substantively unreasonable because, when weighed against certain
aspects of Brown’s personal circumstances, it is greater than
necessary to comply with the goals of § 3553(a).
sentence

is

substantively

reasonable

if

the

A revocation

district

court

states a proper basis for concluding that the defendant should
receive

the

sentence

imposed,

Crudup, 461 F.3d at 440.
identified
maximum

appropriate

sentence.

up

to

the

statutory

maximum.

As we have said, the district court
grounds

We

substantively reasonable.

thus

for

the

conclude

35–month,

that

the

statutory

sentence

is

See id. (holding that imposition of
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statutory

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maximum

term

of

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imprisonment

was

substantively

reasonable, given that the district court expressly relied on
defendant’s “admitted pattern of violating numerous conditions
of

his

supervised

release[,]”

despite

leniency by the district court).

several

extensions

of

Finally, we decline counsel’s

invitation to reweigh the countenanced § 3553(a) factors and the
relevant
purview.
Cir.

circumstances

in

this

case,

as

this

is

outside

our

See United States v. Jeffery, 631 F.3d 669, 679 (4th

2011)

(recognizing

that

“district

courts

have

extremely

broad discretion when determining the weight to be given each of
the § 3553(a) factors”).
We
dispense

therefore
with

contentions

are

affirm

oral

the

argument

adequately

district

court’s

because

presented

in

the
the

judgment.

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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