UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4284

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH JOSEPH JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. David C. Norton, Chief District 

Judge. (2:91-cr-00529-DCN-2)

Submitted: March 21, 2011 Decided: April 6, 2011

Before NIEMEYER and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South 

Carolina, for Appellant. William N. Nettles, United States 

Attorney, Jimmie Ewing, Assistant United States Attorney, 

Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kenneth Joseph Johnson appeals his sixty-three month 

sentence imposed on revocation of supervised release. He argues 

that there was an insufficient factual basis for revocation and 

that the district court’s sentence was plainly unreasonable 

because the court failed to consider the U.S. Sentencing 

Guidelines Manual Chapter 7 policy statements in formulating his 

within-Guidelines sentence. We affirm.

I. Factual Basis

This court reviews the district court’s decision to 

revoke a defendant’s supervised release for an abuse of 

discretion. United States v. Pregent, 190 F.3d 279, 282 

(4th Cir. 1999). The district court need only find a violation 

of a condition of supervised release by a preponderance of the 

evidence. 18 U.S.C. § 3583(e)(3) (2006); Johnson v. United 

States, 529 U.S. 694, 700 (2000). This court reviews factual 

determinations informing the conclusion that a violation 

occurred for clear error. United States v. Carothers, 337 F.3d 

1017, 1019 (8th Cir. 2003). 

Johnson notes that his supervised release violation 

was based on his recent federal conviction, and that his appeal 

of that conviction was pending before this court at the time he 

appealed his supervised release revocation and sentence. He 
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asserts that if the conviction is vacated, the basis for 

revocation will no longer be valid. We recently affirmed 

Johnson’s underlying conviction and sentence. United States v. 

Johnson, No. 09-4280, 2011 WL 288522 (4th Cir. Jan. 31, 2011) 

(unpublished). Accordingly, there is no question that an 

adequate factual basis supported the district court’s revocation

decision.

II. Sentence

A sentence imposed after revocation of supervised 

release should be affirmed if it is within the applicable 

statutory maximum and is not plainly unreasonable. United 

States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). We

first review the sentence for reasonableness, “follow[ing] 

generally the procedural and substantive considerations that 

[are] employ[ed] in [the] review of original sentences, . . . 

with some necessary modifications to take into account the 

unique nature of supervised release revocation sentences.” Id.

at 438-39; see United States v. Finley, 531 F.3d 288, 294 

(4th Cir. 2008) (“In applying the ‘plainly unreasonable’ 

standard, we first determine, using the instructions given in 

Gall [v. United States, 552 U.S. 38 (2007)], whether a sentence 

is ‘unreasonable.’”).
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A sentence is reviewed for reasonableness under an 

abuse of discretion standard. Gall, 552 U.S. at 51. This 

review requires consideration of both the procedural and 

substantive reasonableness of a sentence. Id.; see United 

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After 

determining whether the district court properly calculated the 

defendant’s advisory guideline range, we must decide whether the 

district court considered the § 3553(a) factors, analyzed the 

arguments presented by the parties, and sufficiently explained 

the selected sentence. Lynn, 592 F.3d at 575-76; see United 

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the 

sentence is free of significant procedural error, the appellate 

court reviews the substantive reasonableness of the sentence. 

Lynn, 592 F.3d at 575; United States v. Pauley, 511 F.3d 468, 

473 (4th Cir. 2007).

Although the district court must consider the Chapter 

7 policy statements and the requirements of § 3553(a) and 

§ 3583, “the sentencing court retains broad discretion to revoke 

a defendant’s probation [or supervised release] and impose a 

term of imprisonment up to the statutory maximum.” United 

States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (citing 

Crudup, 461 F.3d at 439). 

Johnson concedes that because he did not request a 

different sentence or object to his sentence, our review is for 
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plain error. See Lynn, 592 F.3d at 577 (applying plain error 

review to a claim that sentence was unreasonable where the 

defendant did not request a different sentence); Fed. R. Crim. 

P. 52(b). To establish plain error, Johnson must show that an 

error occurred, that the error was plain, and that the error 

affected his substantial rights. United States v. Muhammad, 478 

F.3d 247, 249 (4th Cir. 2007). Even if Johnson satisfies these 

requirements, “correction of the error remains within [the 

court’s] discretion, which [the court] should not exercise . . . 

unless the error seriously affect[s] the fairness, integrity or 

public reputation of judicial proceedings.” Id. (internal 

quotation marks and citation omitted).

We have reviewed the record and conclude that Johnson 

has not satisfied this strict standard. He claims that the 

district court did not consider the Chapter 7 policy statements. 

While the court did not explicitly discuss the statements, we 

have held that the district court need not discuss the Chapter 7 

statements, so long as it is clear from the record that the 

court considered the statements. See United States v. Davis, 53 

F.3d 638, 642 (4th Cir. 1995) (district court “need not engage 

in ritualistic incantation in order to establish its 

consideration of [the Chapter 7 statements]”). Our review of 

the record leads us to conclude that the court did consider the 
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Chapter 7 statements, and the court did not err, let alone 

plainly so.

Accordingly, we affirm the judgment of the district 

court revoking supervised release and imposing a sixty-three 

month 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