UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4267

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY ROMERO BENTON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Raymond A. Jackson, District 

Judge. (2:98-cr-00036-RBS-1)

Argued: May 13, 2011 Decided: June 16, 2011

Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit 

Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Alexandria, Virginia, for Appellant. Darryl James Mitchell, 

OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for 

Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Rodolfo Cejas II, Assistant Federal Public Defender, 

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for 

Appellant. Neil H. MacBride, United States Attorney, 

Alexandria, Virginia, Emily Sowell, Third-Year Law Student, 

OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for 

Appellee. 
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

The district court determined that Timothy Romero Benton 

violated the conditions of his supervised release, and the court 

sentenced Benton to 36 months’ imprisonment, the maximum 

sentence available for the Grade-C violations committed by 

Benton. Benton appeals, challenging the procedural and 

substantive reasonableness of the sentence. We affirm.

I.

Benton was released by the Federal Bureau of Prisons on 

January 15, 2010, after serving a 147-month sentence for armed 

bank robbery. Benton met with his probation officer for the 

first time on January 19, 2010. At that meeting, the officer 

instructed Benton to report back to the probation office the 

next day and then to a substance abuse treatment center for an 

initial assessment. Benton called the probation officer the 

next day to say that he would not be reporting to the probation 

office or to the substance abuse center. Benton told the 

officer that he refused to abide by the conditions of his 

supervised release and asked the officer to return him to court 

for sentencing. Benton did return to the probation office on 

January 21, 2010, and he again stated that he would not abide by 

the conditions of supervised release and asked to be returned to 

court for sentencing. The probation officer thereafter filed a 
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petition on supervised release, alleging two violations --

failure to participate in a treatment program and failure to 

report to the probation officer.

At the revocation hearing, the probation officer testified 

that during their first meeting, Benton “didn’t seem to 

understand why he was on supervised release,” and that Benton 

believed “he had already done his time and he shouldn’t have to 

be doing any more time.” J.A. 34. According to the probation 

officer, Benton was “adamant” in his refusal to abide by the 

conditions of supervised release. J.A. 35. 

Benton’s testimony at the hearing reflected his disdain for 

the concept of supervised release and the specific conditions 

imposed on him. Benton stated that since he had not been 

charged with any drug crimes, he should not have been ordered to 

undergo a substance abuse assessment, and that he thus had “no 

intentions” of reporting to the treatment center as ordered by 

his probation officer. J.A. 41. He stated that he “d[id]n’t 

trust the system” and he told the officer that he refused to 

comply with the conditions because he wanted to challenge the 

“legality of supervised release.” J.A. 42. When asked by his 

attorney if he intended to comply with the terms of supervised 

release, Benton stated he would comply “within reason,” if his 

probation officer would work with him. J.A. 42. The district 

court then asked Benton if he intended to comply with the 
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conditions of supervised release, and Benton reaffirmed his 

position, stating that “I intend to follow it within reason.” 

J.A. 46. Benton also indicated that since he had served his 

time, he should not be required to pay restitution, but stated 

that “[i]f they work with me, then I will work . . . . I have 

rights.” J.A. 49. Benton claimed that he had “no problem with 

the law. I love the law, if it’s done right.” J.A. 50.

The government argued that Benton’s statements to his 

probation officer and at the hearing demonstrated that Benton 

had no respect for the court and that “[t]here is absolutely no 

prospect that this defendant will ever be a compliant 

supervisee.” J.A. 51-52. The government therefore asked the 

district court to terminate supervised release and impose the 

maximum sentence available. Counsel for Benton contended that 

while Benton believed that supervised release in general was 

illegal, Benton said that he would comply with the conditions. 

Counsel made no argument about what sentence would be 

appropriate for Benton, nor did counsel raise any objection to 

the sentence sought by the government.

After considering the parties’ arguments, the district 

court stated that it had considered imposing the statutory 

maximum sentence, but that it was giving Benton the benefit of 

the doubt in light of Benton’s “shaky” statements that he would 

comply with the conditions of supervised release. J.A. 57. The 
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court thus announced its intention to sentence Benton to six 

months’ imprisonment, to be followed by supervised release for 

54 months. The court stated that if Benton were to return to 

court “with the same business about what you are not going to 

do,” the court would terminate supervised release and impose the 

maximum sentence. J.A. 57. The court explained:

So we are going to start over again in six 

months, give you time to think about it. If you come 

back in here and decide you don’t want to comply, that 

you are going to jerk the Court around, that’s it. . . 

. The Court is certain that it is giving you a fair 

opportunity to succeed. I have explained it to you. 

There’s nothing to negotiate about whether you are on 

supervised release or question the legality of it. 

There’s not one ounce . . . of credence or credibility 

in that argument.

J.A. 58. As the court was instructing Benton to “drop that” 

approach, Benton interrupted to say, “I can’t drop it, your 

Honor.” J.A. 58. The court then asked, “Are you telling me 

that when you come back, you are coming back with the same thing 

again?” J.A. 58. Benton responded, “I didn’t say I was coming 

back with the same thing, but I have an issue where it’s based 

on my rights. My liberty is being -- I’m being deprived on my 

liberty.” J.A. 58. The district court then changed its view 

and sentenced Benton to 36 months’ imprisonment, because Benton 

was “evidencing to the Court that he does not accept supervised 

release [and that] [h]e does not plan to comply with the Court’s 

directives to him.” J.A. 58-59. The court explained that 
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Upon your completion of the 36 months, you will 

be a free man. You won’t have to do anything. You 

are free to go.

All right. And the reason for it is the 

defendant has indicated he’s not going to comply and 

he continues to . . . challenge the right of the Court 

to impose supervised release.

J.A. 59. Benton interjected, claiming that he did not refuse to 

comply with the conditions of supervised release or challenge 

the court’s right to impose supervised release. The district 

court was unconvinced:

[T]he Court has attempted to impose a sentence that’s 

reasonable, but the defendant, through his words and 

his deeds, is resisting the Court’s efforts to do 

that. He’s made it clear he challenges the Court’s 

right and his responsibility to be on supervised 

release. So the Court does not believe it appropriate 

to continue to waste the resources of this Court on 

someone who does not respect the system or will not 

comply. Therefore, the Court will give him what he’s 

due under the law and release him.

J.A. 59-60.

II.

Benton appeals, challenging the sentence imposed by the 

district court as both procedurally and substantively 

unreasonable.

A sentence imposed on revocation of supervised release may 

be reversed if it is “plainly unreasonable.” 18 U.S.C. § 

3742(a)(4). “In determining whether a sentence is plainly 

unreasonable, we must first decide whether the sentence is 
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unreasonable.” United States v. Crudup, 461 F.3d 433, 438 (4th 

Cir. 2006). Only if this court finds the sentence unreasonable 

must we decide whether it is “plainly” so. See United States v. 

Moulden

Reviewing the reasonableness of a revocation sentence 

generally involves the same considerations of procedural and 

substantive reasonableness employed in the review of the 

original sentences imposed in criminal proceedings. 

, 478 F.3d 652, 657 (4th Cir. 2007).

See Crudup, 

461 F.3d at 438. In the context of supervised release, however, 

our review “takes a more deferential appellate posture 

concerning issues of fact and the exercise of discretion than 

reasonableness review for guidelines sentences.” Moulden

Benton argues his sentence is procedurally unreasonable 

because the district court did not consider the sentencing range 

suggested in Chapter 7 of the Sentencing Guidelines or the 

relevant § 3553(a) factors and did not sufficiently explain the 

basis for imposing the maximum sentence. Because Benton made no 

arguments about what sentence would be appropriate and did not 

object after sentence was imposed, we review for plain error 

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

2010) (“By drawing arguments from § 3553 for a sentence 

different than the one ultimately imposed, an aggrieved party 

sufficiently alerts the district court of its responsibility to 

, 478 

F.3d at 656 (internal quotation marks omitted).
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render an individualized explanation addressing those arguments, 

and thus preserves [his] claim.”). In our view, Benton has 

failed to carry his burden of showing that plain error occurred.

A sentence is procedurally reasonable if the district court 

considered the relevant policy statements set forth in Chapter 7 

of the Sentencing Guidelines and the applicable factors set out 

in 18 U.S.C. § 3553(a) and sufficiently explained the sentence 

imposed. See United States v. Thompson, 595 F.3d 544, 547 (4th 

Cir. 2010); Moulden, 478 F.3d at 657. Nonetheless, “[w]e have 

repeatedly said post-Booker that a court need not robotically 

tick through § 3553(a)’s every subsection.” Moulden, 478 F.3d 

at 657 (internal quotation marks omitted). The court’s 

explanation of its sentence must be sufficient to permit us to 

“effectively review the reasonableness of the sentence,” id., 

but the explanation for a sentence exceeding that recommended by 

the Guidelines’ policy statements need not be as specific as 

might be required in the context of an initial sentencing, see

id. at 657; Crudup, 461 F.3d at 439.

In this case, the district court did not explicitly refer 

to the Guidelines’ suggested sentencing range, nor did the court 

specifically mention the other relevant § 3553(a) factors. See

18 U.S.C. § 3583(e) (listing the § 3553(a) factors to be 

considered when modifying or revoking supervised release). We 

nonetheless believe that the record as a whole demonstrates that 
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the court in fact properly considered the advisory sentencing 

range and the relevant statutory factors and sufficiently 

explained the basis for the sentence imposed.

Preliminarily, we note that the court’s initial decision to 

impose a sentence of six months demonstrates that the court was 

in fact aware of the sentencing range suggested by the 

Guidelines. Moreover, the factor driving the sentence in this 

case, as the district court made abundantly clear, was Benton’s 

own defiant intransigence. After considering the statements 

Benton made to his probation officer and during the hearing, the 

district court concluded as a factual matter that Benton would 

not comply with the conditions of supervised release and that 

the appropriate sentence therefore was the maximum term of 

imprisonment and termination of supervised release. The 

concerns expressed by the court during the hearing were clearly 

related to several of the relevant § 3553(a) factors, see 18 

U.S.C. § 3553(a)(1), (a)(2)(B) & (C), and reflected 

consideration of Benton’s individual circumstances. See

Moulden, 478 F.3d at 658 (finding that district court 

“articulated clear and appropriate reasons under § 3553(a)” 

where court’s reasons, “[e]ven if not couched in the precise 

language of § 3553(a), . . . [could] be matched to a factor 

appropriate for consideration under that statute and [were] 

clearly tied to [the defendant’s] particular situation”). 
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Because the district court’s statements during the hearing 

established that he considered all required factors before 

imposing sentence and were sufficiently detailed to permit us to 

review the reasonableness of the sentence imposed, we find no 

procedural error, plain or otherwise.

As to Benton’s contention that the sentence imposed was 

substantively unreasonable, we again disagree. A sentence is 

substantively reasonable if the district court states a proper 

basis for its imposition of a sentence up to the statutory 

maximum. See Crudup, 461 F.3d at 440; see also Thompson, 595 

F.3d at 548 (“For a sentence to be plainly unreasonable, . . . 

it must run afoul of clearly settled law.”). While the court 

preliminarily indicated that a six-month sentence would be 

reasonable if Benton intended to comply with the conditions of 

supervised release, the district court subsequently concluded, 

based on Benton’s continued statements to the court, that Benton 

in fact did not intend to comply with the conditions of 

supervised release. The district court’s factual finding on 

this point is a fair reading of the many statements made by 

Benton to his probation officer and during the course of the 

hearing. Given the record-supported factual finding by the 

district court and our highly deferential review of revocation 

sentences, see Moulden, 478 F.3d at 656; Crudup, 461 F.3d at 

439, we cannot conclude that the district court erred, much less 
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plainly erred, by imposing the maximum revocation sentence on a 

defendant who refuses to comply with the conditions of 

supervised release. The sentence is substantial, but we cannot 

say that it is substantively unreasonable under the 

circumstances of this case.

III.

As explained above, the district court’s sentence is 

neither procedurally nor substantively unreasonable. Because 

the sentence is not unreasonable, it quite clearly is not 

plainly unreasonable. Accordingly, we reject Benton’s 

challenges and affirm the 36-month sentence imposed by the 

district court.

AFFIRMED