US v. Antonio Butt

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-00062-RBS-TEM-1. Copies to all parties and the district court. [999753501]. [15-4469]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4469

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO LAMONT BUTTS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.
Rebecca Beach Smith,
Chief District Judge. (4:08-cr-00062-RBS-TEM-1)

Submitted:

January 27, 2016

Decided:

February 11, 2016

Before MOTZ, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Rodolfo Cejas, II, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant.
Dana J.
Boente, United States Attorney, Dee M. Sterling, Assistant
United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antonio

Lamont

Butts

appeals

the

district

court’s

order

imposing a 60-month prison sentence upon revoking his supervised
release.

On appeal, he contends his sentence to the statutory

maximum is procedurally and plainly unreasonable because it was
based

predominantly

§ 3553(a)(2)(A)

on

(2012)

sentencing

that

are

not

factors

in

applicable

sentences under 18 U.S.C. § 3583(e) (2012).

18

to

U.S.C.

revocation

We affirm.

We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
“plainly unreasonable.”

United States v. Padgett, 788 F.3d 370,

373 (4th Cir.) (citing United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006)), cert. denied, 136 S. Ct. 494 (2015).
if

the

revocation

sentence

whether it is plainly so.

is

unreasonable

must

we

Only
assess

Id. (citing United States v. Moulden,

478 F.3d 652, 656 (4th Cir. 2007)).

“In determining whether a

revocation sentence is unreasonable,” we are informed by the
same procedural and substantive considerations that guide our
review of original sentences but “we strike a more deferential
appellate posture.”

Id. (citations and internal quotation marks

omitted).
A district court “retains broad discretion to . . . impose
a

term

of

imprisonment

up

to

the

statutory

maximum.”

(citations and internal quotation marks omitted).
2

Id.

In exercising

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such discretion, the district court “is guided by the Chapter
Seven policy statements in the federal Guidelines manual, as
well as the statutory factors applicable to revocation sentences
under 18 U.S.C. §§ 3553(a), 3583(e).”
738 F.3d 638, 641 (4th Cir. 2013).

United States v. Webb,
“Chapter Seven instructs

that, in fashioning a revocation sentence, ‘the court should
sanction primarily 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.’”
Id.

(quoting

U.S.

Sentencing

Guidelines

Manual

ch.

7,

pt.

A(3)(b) (2012)).
“Although § 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.”
listed

in

§ 3553(a)(2)(A)

are

Id.

Moreover, “the factors

intertwined

with

the

factors

courts are expressly authorized to consider under § 3583(e).”
Id. (citations omitted).

Thus, “although a district court may

not

sentence

impose

a

seriousness
sentence

revocation

of

to

the

promote

releasee’s
respect

based

violation
for

the

predominately

on

the

for

the

or

the

need

law

and

provide

just

punishment . . . mere reference to such considerations does not
render

a

revocation

sentence

procedurally

unreasonable

when

those factors are relevant to, and considered in conjunction
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with, the enumerated § 3553(a) factors.”

Id. at 642 (citation

omitted); see USSG ch. 7, pt. A(3)(B) (punishing new criminal
conduct is not “the primary goal of a revocation sentence,” but
the

“nature

of

the

conduct

leading

to

the

revocation

[is]

considered in measuring the extent of the breach of trust”).
Because

Butts

did

not

challenge

the

district

court’s

consideration of factors omitted from § 3583(e) in the district
court, our review is for plain error.

See United States v.

Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015); Webb, 738
F.3d at 640.

Thus, he must show (1) error; (2) that is clear or

obvious; and (3) that the error affected his substantial rights.
Webb, 738 F.3d at 640.

To satisfy the third prong, he must show

“that he would have received a lower sentence had the district
court not committed the errors he alleges.”

Id. at 643 (citing

United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010)).
“Even when this burden is met, we retain discretion whether to
recognize the error and will deny relief unless the district
court’s

error

seriously

public

reputation

of

affect[s]
judicial

the

fairness,

proceedings.”

integrity
Id.

at

or
641

(citations and internal quotation marks omitted).
We have reviewed the record and conclude that Butts fails
to make this showing.

First, we do not agree that the district

court based his sentence predominantly on the omitted factors in
§ 3553(a)(2)(A).

Even if the district court did plainly err,
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Butts fails to show that he would have received a lower sentence
if the district court had not committed the alleged error.
Accordingly,
dispense

with

contentions

are

we

oral

affirm

the

argument

adequately

district

because

presented

in

court’s

the
the

facts

order.

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

5