2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
2-5-2004 

# U S A v . B e nj a min P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 03-2623

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no v a . e du
. R e c omme nde d C it a t ion

" U SA v . Be n j a min " (2004). 2004 D e cisio n s . P ape r 1020. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2004/1020* When this case was firs t listed for disposition on January 16, 2004, the panel consisted of Judges Sloviter, Rendell and Aldisert. Thereafter Judge Rendell recused herself from partic ipation. Chief Judge Scirica then appointed himself as the third judge. 1 NOT PRECED ENTIAL UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT
No. 03-2623
UNITED STATES OF AMERICA

v. GEORGE BEN JAMIN

Appellant
On Appeal from the United States Distri ct Court for the Middle District o f Pennsylvania (D.C. No. 01-mc- 00202 ) Distri ct Court J

udge: Honorabl e Sylvia H. Ra mbo
Submitted Under Third Circuit LAR 34.1(a)

January 27, 2004 Before: SC IRICA, Chief Judge , SLOVIT ER and A LDISER T, Circuit Judges
. * (Filed: February

5, 2004)

OPINION OF THE COURT2

ALDISE RT, Circuit

Judge
. This appeal by George Benjam in requires us to decide whether his s entence shoul d be vacat

ed and the pr ocee dings remanded

for a n ew sentenc ing he ari ng . He argues t hat the di strict court e

rred in fa iling to c redit him for adm

itting vi olationsof the condition s of superv ised release. The d istrict court had j urisdiction b ased on 18 U.S.C. § 3583(e). W e have jurisd iction based o n 18 U.S .C. § 374 2(e)(4) and 28 U.S.C . § 1291
. We wi ll affirm. I. Because we w rite exclusively for the b enefit of th e parties, who a re familiar with the facts and the proceed ings in the d istrict court, our d iscussion of the backgro und will be limited. On August 15, 1997, Benjamin entered a guilty plea in the United States District Court f or the Eastern District of Pen nsylvania to engagin g in a consp iracy to commit m

ail fraud, wire fraud, credit c ard fraud and interstate transportation of stolen property in violat ion of 18 U.S.C. § 371. He late r was sentenced t

o six mont

hs in pris on and three y ears on supervised releas e. His term of supervised release began on January 13, 2001 and was t

o end on Januar

y 12, 2004. On Decem

ber 11, 2001, t

he United St

ates Di strict Court for t

he Middle Di strict of Pennsylvania ( “the district c ourt”) accepted jurisdict ion over Benjamin’s supervised relea se pursua

nt to a tr ansfer or der. On Febr

uary 27, 2003, a Unit

ed State s probati on3

officer filed a pet

ition wit h the dist rict c ourt alleging that

Benjamin had violat

ed the conditions of supervised release by committ ing violations of state law, using controlled substanc es, failing to re

port to the

probation offi cer and fa

iling to c omplet

e a drug treatment program. Ben

jamin admitted most of th ese allegations at a su pervised release revocat ion hearing before the

distri ct court

on March 6, 2003. The probation officer submitted a memorandum to the distri ct court advising that the Policy St

atem ent set forth at U. S.S.G. § 7B1.4( a) provide d for a guideline range of eight to 14 months imprisonme nt in a case of revocation of supervised relea se for a defendant with Benjam

in’s cr imina l histor y c ategory

and grade of vi olation. At the revocat ion hearing, Benjam

in asked t he distr ict cour t to exte nd supervis ed rele ase and allo w hi m to en ter a d iagn osti c trea tment pro gram. The district court found that Benjamin had violated the conditions of supervised relea se and revoked the te rm of supe

rvised r eleas e, sent

encing Benja

min to be impri soned for a t

erm of 14 m

onths. The di strict court s tated on t he recor d the following
reasonsfor its decision: Mr. Benjam

in has dem

onstrat ed substa ntial di sregar

d for both the l aw and the conditions of supervised release. While on supervised releas e Mr. Benjamin used drugs and frequently did not report for drug testing as directed. Mr. Be njamin was aff orded ample op portunity to invo lve himself in drug treatment and faile d to successfully finish the program. Mr. Benjamin involved himself in new crim inal conduct while under supervision . The 14 mon th sentence at the high end of the gu ideline is believe d necess ary

to sanct ion Mr. Benja

min for hi s violat

ion behavior while protecti ng the

com munity and promot

ing re spec t for t

he la w.4

(App. at 37 -38.) II. We mus t deter

mine whe ther the sentenc e impos ed by

the dist rict c ourt for violation of the conditions of supervised release was “pla inly unrea sonable.” United Statesv. Blacks ton , 940 F.2d 877, 894 (3d Ci r. 1991) (quot

ing 18 U.S.C. § 3742( e)(4) (establishing the “plainly unreas onable” standard of review for imposition of a sentence “for an offense for which there is no applicable sentencing guideline”)). III. Benjamin contends t

hat the di strict court’ s sente nce of 14 mont

hs impr isonme nt was plainly

unreasonable because the distri ct court failed to take into ac count that Benjamin admitted violating the conditions of supervised release a nd therefore relieved the government of the burden of proving the violations while also relieving the distri ct court of th e burden o f an eviden tiary hearing. His conten tion, how ever, is withou t merit. For the reasons it stat

ed on the record, the district court concluded that a sentence of 14 months in prison wasappropria te. The 14- month se

ntence di d not excee d the applicable two -year statutory lim it. See 18 U.S.C. § 3583(e )(3). Al though it wasnot bound by t

he United St

ates Se ntencing Com

miss ion’s Poli cy

Statem ent rega rding revocation of supervised release, the district court never theless chose to im

pose a sentence within the recom mendation of U.S.S.G. § 7B1.4(a). Section 7B1.4(a) provides that for a de fendant su ch as Benjamin, w ho was char ged with a G rade C violatio n of his5

supervised release

and who had a criminal history category of VI, the recommended range was eig ht to 14 mon ths imprisonment. Measu red against the p lainly unreasonable standard of review, we reject the contenti on that there was an error at s entencing that requires the case to be remanded. See Blackst on , 940 F.2 d at 894 (h olding th at a statutory maximum three-year im prisonment term was no t a plainly unreasonab le sentenc e for a defendant who viola ted the c onditions of s upervise d relea se, even though the Unite d StatesSentencing Commi ssion’sPolicy Statem ent rec omme

nded a ma

ximum sentence of 10 months). We have c onsidere d all of the argume nts advanc ed by

the part ies and c onclude th at no fu rt he r d is cu ss io n i s n ec es sa ry. The judgment

of the dist

rict c ourt will

be affirm ed.