UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4945

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL DOW,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Beckley. Irene C. Berger, 

District Judge. (5:03-cr-00058-1)

Submitted: April 3, 2013 Decided: May 1, 2013

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, David R. Bungard, Assistant Federal Public 

Defender, Charleston, West Virginia, for Appellant. R. Booth 

Goodwin II, United States Attorney, John L. File, Assistant 

United States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Dow appeals the district court’s order 

revoking his supervised release and sentencing him to a twelvemonth term of incarceration and a four-year term of supervised 

release. On appeal, Dow argues that the district court imposed 

a plainly unreasonable sentence. Finding no reversible error, 

we affirm.

In examining a sentence imposed upon revocation of 

supervised release, this court “takes a more deferential 

appellate posture concerning issues of fact and the exercise of 

discretion than reasonableness review for [G]uidelines 

sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th 

Cir. 2007) (internal quotation marks omitted). A sentence 

imposed upon revocation of supervised release should be affirmed 

if it is within the statutory maximum and not plainly 

unreasonable. United States v. Crudup, 461 F.3d 433, 437 (4th 

Cir. 2006).* In reviewing a revocation sentence, we first 

consider “whether the sentence is unreasonable,” following the 

same general principles we apply to our review of original 

sentences. Id. at 438. Only if we find that a sentence is 

 * To the extent Dow asks this court to revisit the standard 

of review established in Crudup, we decline to do so. See

United States v. Bullard, 645 F.3d 237, 246 (4th Cir. 2011) 

(stating that one panel of this court cannot overrule precedent 

set by another panel).
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either procedurally or substantively unreasonable will we 

determine whether the sentence is “plainly” so. Id. at 439.

A sentence is procedurally reasonable if the district 

court has considered both the applicable 18 U.S.C. § 3553(a) 

(2006) factors, see 18 U.S.C. § 3583(e) (2006), and the policy 

statements set forth in Chapter Seven of the U.S. Sentencing 

Guidelines Manual (“USSG”) (2012). Crudup, 461 F.3d at 439. 

The district court also must provide an explanation of its 

chosen sentence, although this explanation “need not be as 

detailed or specific” as is required for an original sentence. 

United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A 

sentence is substantively reasonable if the district court 

states a proper basis for concluding that the defendant should 

receive the sentence imposed. Crudup, 461 F.3d at 440. “[T]he 

court ultimately has broad discretion to revoke its previous 

sentence and impose a term of imprisonment up to the statutory 

maximum.” Id. at 439 (internal quotation marks omitted).

Dow first argues that his sentence is plainly 

unreasonable because the district court impermissibly considered 

the need to provide just punishment when imposing his sentence. 

See 18 U.S.C. § 3553(a)(2)(A). Because Dow did not challenge in 

the district court that court’s improper reliance on 

§ 3553(a)(2)(A), he must satisfy the additional requirements of 

plain error review. United States v. Hargrove, 625 F.3d 170, 
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183-84 (4th Cir. 2010); see United States v. Olano, 507 U.S. 

725, 732-34 (1993) (providing plain error standard). Dow has 

not met these requirements.

As Dow correctly notes, 18 U.S.C. § 3583(e) mandates 

that a district court consider a majority of the factors listed 

in § 3553(a) when imposing a revocation sentence. Omitted from 

§ 3583(e), however, are the need for the sentence to reflect the 

seriousness of the offense, promote respect for the law, and 

provide just punishment. See id. §§ 3553(a)(2)(A), 3583(e). 

Accordingly, a district court may not impose a revocation 

sentence based predominantly on such considerations. Crudup, 

461 F.3d at 439. To do so contravenes the U.S. Sentencing 

Commission’s direction that “at revocation 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.” 

USSG ch. 7, pt. A(3)(b).

Here, the district court’s explanation of Dow’s 

sentence does not indicate a plainly improper reliance on 

§ 3553(a)(2)(A). Although the court considered a prohibited 

factor under § 3583(e), our review of the record reveals that, 

when imposing Dow’s revocation sentence, the district court 

emphasized Dow’s breach of trust, focusing on the opportunities 

Dow had squandered in the past and his persistent drug use 
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despite those opportunities. See 18 U.S.C. § 3553(a)(1) 

(allowing court to consider nature and circumstances of offense 

and history and characteristics of defendant); United States v. 

Bennett, 698 F.3d 194, 201 (4th Cir. 2012), cert. denied, ___ S. 

Ct. ___, 2013 WL 359745 (Mar. 4, 2013) (upholding sentence when 

prohibited factor “constituted only a minor fragment of court’s 

reasoning” and when court’s “concern with [the defendant’s] 

breach of trust . . . far outweighed any other concerns”). In 

addition, the district court considered several other 

permissible factors under § 3583(e). 

Dow also argues that his sentence is plainly 

unreasonable because it does nothing to address his drug 

addiction. We conclude that the record belies his claim. Given 

the broad discretion to revoke supervised release and impose a 

term of imprisonment up to the statutory maximum, Dow’s sentence 

is reasonable. See Crudup, 461 F.3d at 439 (stating that, if 

sentence is reasonable, inquiry ends).

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED