UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4703

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HAMILTON ROBERT PACE,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Charlottesville. Norman K. Moon,

Senior District Judge. (3:97-cr-00056-NKM-2)

Submitted: February 14, 2013 Decided: February 28, 2013

Before GREGORY, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Andrea L. Harris, 

Assistant Federal Public Defender, Christine Madeleine Lee, 

Research and Writing Attorney, Charlottesville, Virginia, for 

Appellant. Timothy J. Heaphy, United States Attorney, Jean B. 

Hudson, Assistant United States Attorney, Charlottesville, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Hamilton Robert Pace appeals his twenty-one month 

sentence imposed following the revocation of his supervised 

release. Pace claims that his sentence is plainly unreasonable 

because the district court impermissibly relied on the goals of 

sentencing listed in 18 U.S.C. § 3553(a)(2)(A) (2006) when 

imposing his revocation sentence. We affirm.

Generally, a district court has broad discretion when 

imposing sentence upon revoking supervised release. United 

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

affirm such a sentence if it is within the statutory maximum and 

is not “plainly unreasonable.” United States v. Crudup, 461 

F.3d 433, 439-40 (4th Cir. 2006). In making this determination, 

we first consider whether the sentence imposed is procedurally 

or substantively unreasonable. Id. at 438. Only if we so find, 

will we “then decide whether the sentence is plainly 

unreasonable, relying on the definition of ‘plain’ that we use 

in our ‘plain’ error analysis.” Id. at 439. 

Because Pace did not allege the district court’s 

improper reliance on § 3553(a)(2)(A) below, he must also satisfy 

the additional requirements of plain error review. See United 

States v. Bennett, 698 F.3d 194, 199-200 (4th Cir. 2012) 

(unpreserved claim that district court considered impermissible 

factor when imposing revocation sentence is reviewed for plain 
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error), petition for cert. filed, __ U.S.L.W. __ (Jan. 23, 

2013); United States v. Hargrove, 625 F.3d 170, 183-84 (4th Cir. 

2010) (plain error review applies where defendant claims 

substantive unreasonableness for the first time based on 

district court’s consideration of improper factor when 

explaining basis for sentence), cert. denied, 132 S. Ct. 292 

(2011). Accordingly, Pace must show 1) that the district court 

erred, 2) that the error is clear and obvious, and 3) that the 

error affected his substantial rights. United States v. Olano, 

507 U.S. 725, 732-34 (1993). Pace fails to meet these 

requirements.

As Pace correctly notes, 18 U.S.C. § 3583(e) (2006) 

mandates that a district court consider a majority of the 

factors listed in 18 U.S.C. § 3553(a) when imposing a revocation 

sentence. 18 U.S.C. § 3583(e). 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. 18 U.S.C. § 3553(a)(2)(A). 

Accordingly, a district court may not impose a 

revocation sentence based predominantly on such considerations. 

Crudup, 461 F.3d at 439, see also United States v. Miller, 634 

F.3d 841, 844 (5th Cir.) (district court may not consider 

§ 3553(a)(2)(A) factors when imposing sentence upon revocation 

of supervised release), cert. denied, 132 S. Ct. 496 (2011), 
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United States v. Miqbel, 444 F.3d 1173, 1182-83 (9th Cir. 2006) 

(same). 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.” U.S. 

Sentencing Guidelines Manual ch. 7, pt. A(3)(b) (2010). 

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

sentence does not indicate a plainly improper reliance on 

§ 3553(a)(2)(A). First, the court’s reference to the nature of 

Pace’s numerous violations of his supervised release was clearly 

appropriate, especially when considered in conjunction with its

repeated conclusion that Pace, if not incarcerated, would likely 

reoffend and further harm the public. Indeed, at no point did 

the court opine on the seriousness or gravity of Pace’s 

violations, but, instead, focused on their numerosity and Pace’s 

repeated squandering of the opportunities his probation officer 

gave him to remain on supervised release. Similarly, although 

the district court mentioned imposing “just” punishment, its 

single reference to this consideration was made in direct 

connection with its determination that Pace’s sentence would 

adequately deter violations of supervised release, an approved

factor under § 3583(e).
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Moreover, we find no plain error in the district

court’s references to preserving the public’s respect for the 

court and the law. The court’s comments appear to have been in 

response to Pace’s request that his sentence involve little or 

no incarceration so that he could pursue treatment for his drug 

addiction in a non-custodial setting. Noting Pace’s extensive 

criminal record and his repeated violations of his supervised 

release, the court rejected Pace’s proposal. The court also 

noted its concern that the public would object to allowing Pace 

to remain unincarcerated because he had already misspent

multiple opportunities to remain on supervised release and 

receive the treatment he requested. 

Accordingly, although couched in terms of promoting 

respect for the law and the court, the court’s comments were 

clearly and properly grounded in its consideration of Pace’s 

individual history and characteristics, the need to adequately 

sanction Pace’s repeated violation of the court’s trust, and 

protection of the public. When taken in conjunction with the 

other permissible factors the district court considered in 

determining Pace’s sentence, including its “biggest” concern, 

Pace’s risk of recidivism, we find no plain violation of 

§ 3583(e).

Further, even assuming error, Pace is unable to show 

any effect on his substantial rights. Pace’s sentence is at the 
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bottom of his Chapter Seven range of twenty-one to twenty-four 

months and is thus presumed reasonable. United States v. Allen, 

491 F.3d 178, 193 (4th Cir. 2007). Further, the district court 

fully considered and clearly rejected Pace’s primary argument 

for a sentence below twenty-one months, that he should be 

allowed yet another attempt at overcoming his drug addiction in 

lieu of incarceration. We further observe that Pace has not 

argued that he would have received a lower sentence had the 

district court not committed the errors he alleges, and we 

discern no basis to conclude that this would be the case. See

United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010) (to 

demonstrate that sentencing error affected substantial rights, 

“the defendant must show that he would have received a lower 

sentence had the error not occurred”); see also Bennett, 698 

F.3d at 202 (where it was clear that error did not affect 

sentence imposed, we refuse “to order a purposeless remand where 

the district court does nothing more than reiterate what it has 

made clear all along”).

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