NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-2112

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UNITED STATES OF AMERICA

v.

JOSEPH L. OVERTON,

 Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:01-cr-00431-1)

District Judge: Hon. Petrese B. Tucker

Submitted Under Third Circuit LAR 34.1(a)

March 17, 2011

Before: BARRY, CHAGARES, and ROTH, Circuit Judges.

(Filed: March 22, 2011)

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OPINION

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CHAGARES, Circuit Judge.

Joseph Overton appeals the District Court’s sentence for his violation of 

supervised release. For the reasons set forth below, we will affirm.
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I.

Because we write solely for the benefit of the parties, we will only briefly recite 

the facts. Overton was sentenced to seventy-seven months of imprisonment followed by 

thirty-six months of supervised release for a bank robbery in 2001. Less than two weeks 

after being released from prison in 2007, Overton again committed a bank robbery. He 

was later sentenced to fifteen years of imprisonment for the second bank robbery. The 

instant appeal arises from his sentence of twenty-four months of imprisonment for 

violation of supervised release. In imposing the sentence, the District Court ordered that 

the time for violation of supervised release run consecutively to the fifteen year bank 

robbery sentence because it wanted to punish Overton for the separate crime of violation 

of supervised release above and beyond his punishment for bank robbery.

II.

The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and 

this Court has jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s 

sentencing proceeds in two stages: first, we ensure that no procedural errors occurred, 

and second, we examine the substantive reasonableness of the sentence. United States v. 

Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). An abuse of discretion standard 

applies to our review of Overton’s request for a partially concurrent sentence, as this 

objection was preserved. Id. at 567-58. We review unpreserved objections to sentencing, 

such as Overton’s claim regarding the correct sentencing factors, for plain error. United 

States v. Dyer, 325 F.3d 464, 467 (3d Cir. 2003).

III.
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Overton first argues that the District Court committed a procedural error in failing 

to recognize that it had the power to order part of his sentence for violation of supervised 

release to run concurrently to his bank robbery sentence. He construes the District 

Court’s comments at sentencing to mean that the District Court believed that it could 

either impose a twenty-four month sentence to run entirely concurrently or entirely 

consecutively, or that it could impose a shorter sentence to run consecutively, and thereby 

effectively impose a partially concurrent sentence. What Overton argues the District 

Court did not understand is that it could have still imposed a twenty-four month sentence, 

but ordered a portion of the sentence to run concurrently, with the rest running 

consecutively. He requests that this Court clarify the options before the District Court 

and remand for further consideration.

Although the District Court did not explicitly state that it recognized that it had the 

option to sentence Overton to a partially concurrent sentence, the record in this case 

reflects that the District Court was fully aware of its options. After the District Court 

stated its intention to sentence Overton for twenty-four months to run consecutively to his 

bank robbery sentence, his attorney requested that some of this period be designated as 

concurrent to the bank robbery sentence. The District Court stated “[w]ell, when you say 

‘making some part,’ what would be a determinative way to make some part of it 

concurrent?” Appendix (“App.”) 77-78. Defense counsel as well as the Government 

then responded by discussing the practical procedure that would be used to effectuate 

such a decision. The District Court then concluded “[w]ell, arguably, I could just make a 
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lesser sentence, but I’m not inclined to do that. So, therefore, I’m going to make it 24 

months consecutive.” Id. at 78. 

These statements do not reflect a confusion over the District Court’s ability to 

order a partially concurrent sentence, but reflect the District Court’s lack of desire to 

shorten the amount of time that Overton would have to serve in prison. They certainly do 

not constitute an abuse of discretion that would lead this Court to remand the case with 

instructions regarding the various permissible sentencing decisions that the District Court 

could reach. A judge is in no way required to put on the record every option that is 

available to him before settling on a sentence. We therefore decline to remand the case 

based upon the District Court’s alleged lack of understanding regarding its options for 

sentencing.

Overton’s second contention is that the District Court erred in considering its 

desire to punish Overton in imposing its sentence. This argument relies on the 

distinctions between the sentencing factors listed under 18 U.S.C. § 3553(a)(2)(A), which 

sets forth considerations when sentencing for a crime, and 18 U.S.C. § 3583(e), which 

describes the procedure to be used when revoking a term of supervised release. Although 

providing punishment for the crime committed is included in the § 3553(a)(2)(A) factors, 

it is not incorporated by § 3583(e). Because of this, Overton asserts that the District 

Court improperly relied on its desire to “punish[ Overton] for a separate crime,” App. 74, 

in its decision to require that the sentence for violation of supervised release run 

consecutively to his sentence for bank robbery.
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This Court recently concluded that it was permissible for a District Court to 

consider § 3553(a)(2)(A) factors when revoking supervised release under § 3583(e). 

United States v. Young, No. 10-1513, --- F.3d ----, slip op. at 12 (3d Cir. 2011) (“We 

now confront directly the question of whether consideration of the § 3553(a)(2)(A) 

factors in the revocation context is prohibited, and join the Courts of Appeals for the 

Second and Sixth Circuits in holding that a district court does not commit procedural 

error in taking into account those factors when imposing a sentence for the violation of 

supervised release.”). Although “there may be a case where a court places undue weight 

on the seriousness of the violation or the need for the sentence to promote respect for the 

law and provide just punishment,” the consideration of these factors does not constitute a 

procedural error by itself. Id. at 18. 

Overton also argues that the District Court was focused too strongly on the 

§ 3553(a)(2)(A) factors, but we see no support for this contention in the record. Brief 

though they may be, the statements of the District Court addressed Overton’s criminal 

history (§ 3553(a)(1)) and the need to protect the public (§ 3553(a)(2)(C)), and also could 

plausibly be taken to reflect a need for deterrence (§ 3553(a)(2)(B)), all of which are 

factors explicitly incorporated by § 3583(e). Because the District Court’s additional 

statement regarding the need to punish was not so dominant that it can be described as 

plain error, we will affirm the District Court’s sentence.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.