UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4344

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEFFREY V. TURNER,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Huntington. Robert C. Chambers,

District Judge. (3:90-00255-01)

Submitted: July 25, 2007 Decided: August 15, 2007

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West

Virginia, for Appellant. Charles T. Miller, United States

Attorney, Stephanie L. Haines, Assistant United States Attorney,

Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jeffrey V. Turner appeals a twenty-four month sentence

imposed upon revocation of his term of supervised release. He

argues on appeal that his revocation sentence is unreasonable

because the district court relied on the seriousness of the offense

underlying the revocation when determining the sentence, in

contravention of 18 U.S.C.A. § 3583(e) (West 2000 & Supp. 2007) and

this court’s decision in United States v. Crudup, 461 F.3d 433 (4th

Cir. 2006), cert. denied, 127 S. Ct. 1813 (2007). We affirm.

In 1991, Turner pled guilty to conspiracy to possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 846

(2000), and possession of a firearm during a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1) (2000). He was

sentenced to 181 months of imprisonment followed by a three-year

term of supervised release. Turner’s supervised release commenced

on January 30, 2004. Based on Turner’s May 2, 2004, arrest in the

Eastern District of Arkansas for traveling with another convicted

felon in a vehicle with three firearms, on May 3, 2004, Turner’s

probation officer filed a “Petition for Warrant or Summons for

Offender Under Supervision” against Turner alleging four violations

of the terms of his supervised release. Specifically, the petition

alleged that Turner (1) committed another crime when he was

arrested by the Arkansas State Police in a vehicle that contained

three firearms; (2) failed to abide by his supervised release
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condition of not possessing a firearm; (3) left his district

without permission; and (4) associated with a convicted felon

without permission from his probation officer. As a result of his

May arrest, Turner was convicted on August 29, 2005, in the

district court for the Eastern District of Arkansas for possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1) (2000). 

At the revocation hearing, Turner admitted to the first

three violations and the court dismissed the fourth. Based on a

prior criminal history category of III, the advisory policy

statement range was eight to fourteen months of imprisonment with

a statutory maximum of twenty-four months. Turner argued at the

hearing that, in accordance with 18 U.S.C.A. § 3583(e) and this

court’s decision in Crudup, the district court could not consider

the seriousness of the offense as a factor in determining his

sentence. After significant argument on the issue, the district

court revoked Turner’s supervised release and sentenced him to the

statutory maximum of twenty-four months of imprisonment, finding

that the sentence reflected “the nature and circumstances of the

offense, the history and characteristics of the defendant and the

needs for deterrence.” 

On appeal, Turner does not contest the revocation of his

supervised release. The gravamen of Turner’s appeal is that the
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court improperly considered the seriousness of the violations in

imposing his sentence upon revocation. 

Following United States v. Booker, 543 U.S. 220, 261

(2005), this court has held revocation sentences should be reviewed

to determine whether they are plainly unreasonable with regard to

the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007) factors

applicable to supervised release revocation sentences. Crudup,

461 F.3d at 437. This court explained it must first assess the

sentence for reasonableness, “follow[ing] generally the procedural

and substantive considerations that we employ in our review of

original sentences . . . with some necessary modifications to take

into account the unique nature of supervised release revocation

sentences. Id. at 438-49. For instance, as mandated by § 3583(e),

not all the original sentencing factors of § 3553(a) can be

considered when reviewing a revocation sentence. According to

§ 3583(e), in devising a revocation sentence, the district court is

not authorized to consider whether the revocation sentence

“‘reflect[s] the seriousness of the offense, . . . promote[s]

respect for the law, and . . . provide[s] just punishment for the

offense,’ § 3553(a)(2)(A), or whether there are other ‘kinds of

sentences available,’ § 3553(a)(3).” Crudup, 461 F.3d at 439. 

Under Booker and United States v. Hughes, 401 F.3d 540

(4th Cir. 2005), a sentence is procedurally reasonable if the

district court considered the Chapter Seven policy statement range
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and the § 3553(a) factors that it is permitted to consider in a

release revocation case. See 18 U.S.C.A. § 3583(e); Crudup, 461

F.3d at 440. A sentence is substantively reasonable if the

district court stated a proper basis for concluding the defendant

should receive the sentence imposed, up to the statutory maximum.

Crudup, 461 F.3d at 440. Should this court conclude a sentence is

reasonable, it will affirm the sentence. Id. at 439. Only if a

sentence is found unreasonable will this court “decide whether the

sentence is plainly unreasonable.” Id. (emphasis in original). 

In Crudup, this court reiterated that, although a

district court must consider the Chapter Seven policy statements

and the 18 U.S.C.A. § 3553(a) factors applicable to revocation

sentences, the district court has broad discretion to revoke its

previous sentence and impose a term of imprisonment up to the

statutory maximum. Id. at 439. The court further reaffirmed that

“‘a court’s statement of its reasons for going beyond non-binding

policy statements in imposing a sentence after revoking a

defendant’s supervised release term need not be as specific as has

been required when courts departed from guidelines that were,

before Booker, considered to be mandatory.’” Id. (quoting United

States v. Lewis, 424 F.3d 239, 245 (2nd Cir. 2005)) (emphasis in

original). 

In this case, there was significant discussion below as

to the court’s consideration of the seriousness of the offense in
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imposing its sentence upon revocation. It is clear from the record

that the district court was well aware that the seriousness of the

underlying conduct is not a designated factor to be considered in

sentencing on revocation of supervised release. The court

explicitly stated that it considered the seriousness of the offense

only to the extent that it pertained to its permissible

consideration of the “nature and circumstances of the offense and

the history and characteristics of the defendant.” Moreover,

here, the seriousness of the offense was clearly not the court’s

focal point. The court relied heavily on the fact that Turner

committed the underlying offense shortly after starting his

supervised release. After reviewing the record, we find that the

revocation sentence was based primarily on Turner’s breach of trust

and not primarily upon any impermissible factor. See 18 U.S.C.A.

§ 3583(e) (specifically directing sentencing courts to consider

“the nature and circumstances of the offense and the history and

characteristics of the defendant,” as set forth in 18 U.S.C.A.

§ 3553(a)(1)); U.S. Sentencing Guidelines Manual Ch.7, Pt.

A(3)(b)) (2007) (“[A]t 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.”); see also

United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007)

(clarifying that, while certain considerations under 18 U.S.C.A.
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§ 3553(a)(2)(A) are not proper for the purpose of sentencing upon

revocation of supervised release, the seriousness of the offense

underlying the revocation, though not a focal point of the inquiry,

may be considered to a lesser degree as part of the criminal

history of the violator). 

We find that Turner’s sentence is not plainly

unreasonable. Accordingly, we affirm his sentence. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED