UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4715

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

FRED LOUIS GERTH, III, 

Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Louise W. Flanagan, 

District Judge. (7:06-cr-00040-FL-1) 

Submitted: March 8, 2013 Decided: March 14, 2013

Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

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Unpublished opinions are not binding precedent in this circuit. 
2

PER CURIAM: 

Fred Louis Gerth, III, appeals the district court’s 

judgment revoking his supervised release and imposing a 

twenty-four-month prison term. Gerth challenges this sentence, 

arguing that it is plainly unreasonable. We affirm. 

A district court has broad discretion to impose a 

sentence upon revoking a defendant’s supervised release. United 

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

affirm a sentence imposed after revocation of supervised release 

if it is within the applicable statutory maximum and not 

“plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 

437, 439-40 (4th Cir. 2006). In determining whether a 

revocation sentence is plainly unreasonable, we first assess the 

sentence for unreasonableness, “follow[ing] generally the 

procedural and substantive considerations that we employ in our 

review of original sentences.” Id. at 438. 

A supervised release revocation sentence is 

procedurally reasonable if the district court considered the 

Sentencing Guidelines’ Chapter 7 advisory policy statements and 

the 18 U.S.C. § 3553(a) (2006) factors it is permitted to 

consider in a supervised release revocation case. 18 U.S.C.A. 

§ 3583(e) (West 2006 & Supp. 2012); Crudup, 461 F.3d at 439. 

Such a sentence is substantively reasonable if the district 

court stated a proper basis for concluding the defendant should 
3

receive the sentence imposed, up to the statutory maximum. 

Crudup, 461 F.3d at 440. Only if a sentence is found 

procedurally or substantively unreasonable will we “then decide 

whether the sentence is plainly unreasonable.” Id. at 439. 

A sentence is plainly unreasonable if it is clearly or obviously 

unreasonable. Id. 

In this case, there is no dispute that Gerth’s 

twenty-four-month prison sentence does not exceed the applicable 

statutory maximum sentence of two years’ imprisonment, 18 U.S.C. 

§ 3559(a) (2006); 18 U.S.C.A. § 3583(e)(3), and Gerth does not 

assert that the district court committed any procedural errors. 

Rather, he contends that his sentence is substantively 

unreasonable in light of his need for mental health treatment. 

After review of the parties’ briefs and the record, we 

conclude that the twenty-four-month prison sentence, although 

above the advisory policy statement range of four to ten months’ 

imprisonment, is not unreasonable. The district court 

considered the advisory policy statement range and the arguments

of Gerth’s counsel for a sentence below that range. It is 

apparent that the court also considered relevant § 3553(a) 

factors, addressing on the record the nature and circumstances 

of Gerth’s violative behavior and the need for the sentence to 

protect the public and to deter Gerth. 18 U.S.C. § 3553(a)(1), 

(2)(B)-(C). The court’s comments also indicate that it imposed 
4

a sentence above the policy statement range as a result of 

Gerth’s breach of trust, despite prior lenient treatment. 

See U.S. Sentencing Guidelines Manual Ch. 7, Pt. A, introductory 

cmt. 3(b) (“[A]t revocation the [district] court should sanction 

primarily the defendant’s breach of trust.”). We conclude that 

the district court adequately explained its rationale for 

imposing the twenty-four-month prison sentence and relied on 

proper considerations in doing so. Based on the broad 

discretion that a district court has to revoke a term of 

supervised release and impose a prison term up to and including 

the statutory maximum, Gerth’s revocation sentence is not 

unreasonable. Therefore, we conclude that Gerth’s sentence is 

not plainly unreasonable. 

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