USCA4 Appeal: 22-4291 Doc: 40 Filed: 01/08/2024 Pg: 1 of 22
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4291
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD DEWAYNE LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:03-cr-00309-HEH-1)
Argued: October 25, 2023 Decided: January 8, 2024
Before WILKINSON, NIEMEYER, and BENJAMIN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson and Judge Benjamin joined.
ARGUED: Joseph Stephen Camden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Olivia L. Norman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 22-4291 Doc: 40 Filed: 01/08/2024 Pg: 2 of 22
NIEMEYER, Circuit Judge:
In December 2010, after serving roughly seven years in prison for his 2004 federal
conviction for conspiracy to traffic in illegal drugs and unlawful firearm possession,
Richard Lewis began serving two concurrent 5-year terms of supervised release. While on
supervised release, he was arrested and convicted under state law on three counts of
manufacturing or distributing illegal drugs and sentenced to 13 years’ imprisonment for
those offenses.
On the federal probation officer’s petition, the district court revoked Lewis’s
supervised release for violating a condition of his release — that he not commit any new
crimes — and sentenced him to 20 months’ imprisonment, to be served consecutively to
his state sentence. Explaining its sentence, the court addressed Lewis’s particular factual
circumstances, some of which favored him, and concluded that its revocation sentence
“satisf[ied] all the factors set forth in [18 U.S.C. §] 3553(a), and provide[d] for just
punishment, and reflect[ed] the extent of the breach of trust evidenced by [Lewis’s]
breaches of supervised release.”
Lewis challenges his sentence, contending first that it was plainly unreasonable
because the district court “expressly considered and based its sentence on the need to
provide just punishment [for] and reflect the seriousness of the violation.” And second, he
contends that the district court imposed the sentence pursuant to Chapter 7 of the
Sentencing Guidelines, which, he argues, is invalid because its provisions recommend
imprisonment ranges based on “the seriousness of the violation (a forbidden factor) and
justify imprisonment as a sanction for breach of the court’s trust — also a consideration
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omitted from” the supervised release revocation statute, 18 U.S.C. § 3583(e). He claims
that Chapter 7’s “express reliance on punishment as the justification for its policy statement
renders [its] provisions ultra vires.” (Emphasis added).
We conclude that the district court faithfully complied with Chapter 7 and that
Chapter 7 faithfully implements the governing statutes and therefore is not ultra vires. We
also conclude that the district court’s reference to prohibited factors did not render its
sentence plainly unreasonable. Accordingly, we affirm.
I
After the government alleged that Lewis had committed numerous offenses between
1996 and 2002, he pleaded guilty in 2004 to two counts charging him with conspiracy to
distribute 50 grams or more of cocaine base and possession of a firearm in furtherance of
a drug trafficking crime. He was sentenced to a term of 211 months’ imprisonment, which
was later reduced to 90 months’ imprisonment. He was also sentenced to two 5-year terms
of supervised release, to be served concurrently.
Lewis was released from prison in December 2010 and began serving his 5-year
terms of supervised release. In July 2014, while on supervised release, Lewis was arrested
by state law enforcement officers and thereafter charged with drug trafficking in violation
of state law. In August 2015, he was convicted on three counts and sentenced to 20 years’
imprisonment for each count, with 15 years suspended on the first two counts and 17 years
suspended on the third. Thereafter, in June 2016, the state court revoked Lewis’s probation
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and sentenced him to an additional 6 years’ imprisonment. His current estimated release
date from state custody is in June 2027.
Based on Lewis’s state law violations and his repeated failures of drug tests during
his term of supervised release, his federal probation officer filed a petition for revocation
of Lewis’s supervised release, which had been imposed as part of his 2004 federal sentence.
The district court conducted a hearing on May 3, 2022, at which Lewis admitted that he
had been convicted in state court for offenses committed while on federal supervised
release. Based on that admission, the court found that Lewis had violated his supervised
release conditions and revoked his supervised release.
With respect to sentencing, the court began by finding that Lewis’s violation was
classified as a “Grade A violation” under U.S.S.G. § 7B1.1. And after combining that with
his criminal history category (Category IV) and the fact that his supervised release was part
of a sentence for a Class A felony, the court found that the resulting advisory sentencing
range was 37 to 46 months’ imprisonment, to be served consecutively to his state sentence.
The court also found that the statutory maximum term of imprisonment was 60 months’
imprisonment, as fixed in 18 U.S.C. § 3583(e)(3). Finally, the court stated that it would
take into account Lewis’s medical condition — he is paraplegic — and his serious mental
health issues stemming from the extreme trauma he experienced as a child. After
announcing these preliminaries, the court heard from counsel for the parties as to the
appropriate sentence.
The government requested that Lewis receive a sentence of 37 months’
imprisonment, consecutive to his state sentence, which was at the bottom of his advisory
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Guidelines range. It explained that “because of the severity of the breach of trust in this
case,” it would have “typically” requested either “a sentence at the high end of the
revocation table range [i.e., 46 months] . . . or even the statutory maximum [i.e., 60
months].” “But given a number of other mitigating circumstances, including the personal
characteristics of [Lewis] and the fact that he does have a considerable amount of [state]
time to serve,” it requested instead a sentence at the bottom of the advisory range.
Lewis requested a below-Guidelines sentence. His counsel argued that “this will
actually be the third time [that] he’s being punished for” his 2014 drug-distribution activity,
given his state sentences both for the convictions themselves and his state probation
violation. As to the circumstances of the violation of supervised release, counsel argued
that Lewis had been motivated to return to selling drugs because of the extreme financial
difficulty he faced as a disabled person who, as a convicted felon, was ineligible for certain
government benefits. His counsel explained that, in addition to his paraplegia, Lewis had
other medical problems that had required at least three hospitalizations while he was in
state custody. He also emphasized that Lewis had had “excellent conduct” while in state
custody, with no disciplinary violations since his 2014 arrest, and that he had been given a
minimum-security-level classification. Finally, Lewis’s counsel noted that Virginia had
an excellent reentry program and urged the court to consider that as a reason for running
his federal revocation sentence concurrent to his state sentence. Thus, he requested a
sentence of 36 months to be imposed concurrently with his state sentence. And if the court
were inclined to reject that, he suggested “36 months, but half concurrent and half
consecutive” or “the equivalent” of that, i.e., an 18-month consecutive sentence.
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Lewis’s counsel also made legal arguments, contending that there was a “problem
. . . with Chapter 7 [of the Sentencing Guidelines] as a whole.” He observed that “Chapter
7 grades the violations according to how serious they are” by tying a violation’s grade “to
what the statutory[] maximum in state court was, or what type of crime it was,” and he
argued that this framework violated 18 U.S.C. § 3583(e). He explained that § 3583(e)
directs district courts sentencing a defendant following a violation of supervised release
conditions to consider “all the [§] 3553(a) factors except for just punishment, the
seriousness of the offense, and the need to promote respect for the law,” i.e., the retribution
factor listed in 18 U.S.C. § 3553(a)(2)(A). (Emphasis added). And he noted that we have
specifically directed district courts not to consider the § 3553(a)(2)(A) factor when
imposing a revocation sentence. See United States v. Crudup, 461 F.3d 433, 439 (4th Cir.
2006). He concluded that because Chapter 7 ranks supervised release violations “by the
seriousness of the offense,” it violates the “text of [§] 3583” and therefore is not a valid
implementation of the statute. In addition, he argued that the § 3553(a) factors that were
made applicable by § 3583(e) “all . . . recommend both a sentence below the Guidelines
and [a] concurrent sentence.”
After receiving the arguments of counsel and hearing from Lewis directly, the
district court sentenced him to 20 months’ imprisonment, to be served consecutively to his
state sentence. In doing so, the court stated that it had “reviewed all the factors set forth in
. . . [§] 3553(a)” and explained that two “important factors” stood out. “Number one, [his]
criminal record [was] horrendous,” and “[n]umber two, [his] institutional record ha[d] been
good.” The court also noted that, “unfortunately,” Lewis had “physical conditions that
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[would] affect [him] for the balance of [his] life,” and it explained that it was taking “all
those [factors] into consideration.” The court then concluded:
I think that based upon that, that a sentence that is adequate, but not longer than necessary, to satisfy all the factors set forth in 3553(a), and provide for just punishment, and reflect the extent of the breach of trust evidenced by [Lewis’s] breaches of supervised release, would be commitment to the U.S. Bureau of Prisons for a term of 20 months.
Continuing, the court stated that this consecutive 20-month sentence represented “a
substantial break based upon [Lewis’s] physical condition,” and it further added that, in its
view, “even if [Lewis’s] Guidelines were improperly computed,” “a nonguideline sentence
of 20 months would be appropriate in this case based upon [his] physical condition and the
circumstances presented . . . today.”
From the district court’s revocation order and sentence dated May 3, 2022, Lewis
filed this appeal.
II
Lewis’s challenge to the district court’s sentence is based on his arguments that
(1) in its individualized explanation of his sentence and (2) by its reliance on Chapter 7 of
the Sentencing Guidelines, the district court treated his revocation sentence as
“punishment” for a new “offense,” in violation of 18 U.S.C. § 3583(e), which prohibits
courts, when imposing revocation sentences, from relying on the retributive factor in
§ 3553(a)(2)(A). Indeed, Lewis broadly argues that all of Chapter 7 is ultra vires and
therefore void and that his sentence imposed under Chapter 7 was thus plainly
unreasonable.
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Because Lewis’s argument is directed at both the district court’s sentencing
procedure and Chapter 7 itself, we address first his broader claim that Chapter 7, which the
district court did indeed consider, is ultra vires and therefore void.
Lewis claims that Chapter 7 is permeated by the “punitive rationale” that § 3583(e)
forbids courts from considering in the revocation context. Specifically, he argues that
Chapter 7’s “breach of trust” theory for revocation sentences — under which “the sentence
imposed upon revocation [of supervised release] [is] intended to sanction the violator for
failing to abide by the conditions of the court-ordered supervision,” U.S.S.G. ch. 7, pt. A,
n.3(b) — is conceptually indistinguishable from providing just punishment for the
defendant’s new conduct. Thus, he concludes that Chapter 7 advises courts to impose a
punishment for a new offense and, in doing so, violates § 3583(e)’s prohibition against
considering the § 3553(a)(2)(A) punishment factor. In addition, he explains that Chapter
7 creates “three grades of . . . supervised release violations” (Grades A, B, and C) that are
based on the relative seriousness of the violation — also a consideration that, he maintains,
is prohibited under § 3583(e) — and that Chapter 7 then uses the violation’s grade,
combined with the defendant’s criminal history category, to determine the advisory
sentencing range. See U.S.S.G. § 7B1.1(a); id. § 7B1.4.
To address Lewis’s arguments, we first review the nature of federal sentencing,
including the nature of supervised release and the concept of reimprisoning a defendant
who has violated the conditions of supervised release, as well as how the statutory
sentencing scheme is implemented in the Sentencing Guidelines.
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Congress has provided that a person who has been found guilty of a federal offense
“shall be sentenced . . . so as to achieve the purposes set forth in subparagraphs (A) through
(D) of section 3553(a)(2) to the extent that they are applicable in light of all the
circumstances of the case.” 18 U.S.C. § 3551(a). And subparagraphs (A) through (D) of
§ 3553(a)(2) summarize the four traditional purposes of sentencing: (1) retribution or
punishment, (2) deterrence, (3) incapacitation, and (4) rehabilitation. See Tapia v. United
States, 564 U.S. 319, 325 (2011). Section 3551 also specifies that every federal sentence
must include a term of probation, a fine, or a term of imprisonment. 18 U.S.C. § 3551(b).
Finally, Congress has provided that every sentence that includes a term of imprisonment
may also include “a requirement that the defendant be placed on a term of supervised
release after imprisonment.” Id. § 3583(a). If the court imposes a term of supervised
release, it is required to impose certain mandatory conditions and may also include
discretionary conditions. See id. § 3583(d).
In authorizing supervised release as part of a sentence of imprisonment, Congress
indicated that “the primary goal . . . is to ease the defendant’s transition into the community
after the service of a long prison term for a particularly serious offense, or to provide
rehabilitation to a defendant who has spent a fairly short period in prison for punishment
or other purposes but still needs supervision and training programs after release.” S. Rep.
No. 98-225, at 124 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3307. Thus, supervised
release is “a post-incarceration program intended ‘to assist individuals in their transition to
community life.’” United States v. McLeod, 972 F.3d 637, 641 (4th Cir. 2020) (quoting
United States v. Johnson, 529 U.S. 53, 59 (2000)). In this manner, “[s]upervised release
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fulfills rehabilitative ends, distinct from those served by incarceration.” Johnson, 529 U.S.
at 59.
Therefore, while punishment is a legitimate reason for imposing imprisonment, it is
not an appropriate reason for imposing supervised release, which is intended for
rehabilitation.
Supervised release essentially amounts to a conditional and partial release —
imposed at the time of sentencing — which allows the defendant to return to society when
he has completed his term of imprisonment, albeit subject to specified conditions and the
close supervision of a federal probation officer. Thus, the defendant is, for the period of
supervised release, given greater but not complete freedom. The conditions of such release
may require that the defendant engage in training, become employed, attend programs, and
pursue other transformative activities that will assist him after completion of his term of
supervised release. And Congress has also identified many conditions that are mandatory
on supervised release, including “that the defendant not commit another . . . crime during
the term of supervision.” 18 U.S.C. § 3583(d).
Because supervised release is always conditional, it follows that when a term of
supervised release is imposed, the defendant’s sentence for the offense of conviction
remains open and not fully determined. Specifically, if the defendant violates a condition
of his supervised release, the court is authorized to “revoke” the supervised release “and
require [him] to serve in prison all or part of the term of supervised release authorized by
statute.” 18 U.S.C. § 3583(e)(3) (emphasis added). Thus, when a district court revokes
supervised release and requires reimprisonment, it is transforming a portion of the original
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sentence — the release portion — into imprisonment. The reimprisonment is therefore
conceptionally not a new punishment for the conduct violating the condition of supervised
release; rather, it is a sanction authorized as part of the original sentence for the original
offense. See Johnson v. United States, 529 U.S. 694, 700 (2000) (recognizing that
“postrevocation sanctions” are “part of the penalty for the initial offense”); see also United
States v. Haymond, 139 S. Ct. 2369, 2380 (2019) (plurality opinion) (“The defendant
receives a term of supervised release thanks to his initial offense, and whether that release
is later revoked or sustained, it constitutes a part of the final sentence for his crime”).
Consistent with these characteristics of sentencing, Congress has restricted the
factors that may be considered for each particular component of the sentence. Thus, for
example, a term of imprisonment may not be imposed or lengthened to “promot[e]
correction and rehabilitation.” 18 U.S.C. § 3582(a); see also Tapia, 564 U.S. at 321.
Conversely, supervised release may neither be imposed nor revoked to punish the
defendant for the offense. See 18 U.S.C. § 3583(c), (e). Congress accomplished this
restriction indirectly by specifying that when deciding at the original sentencing hearing
whether to include a term of supervised release and its length and conditions, id. § 3583(c),
as well as when deciding at a revocation hearing whether to reimprison a defendant who
has violated a condition of that supervised release, id. § 3583(e)(3), the court must consider
certain of the § 3553(a) factors. But Congress omitted from the list of § 3553(a) factors to
be considered when imposing or revoking a term of supervised release the factor of
retribution or punishment in § 3553(a)(2)(A), stated as “the need for the sentence imposed
. . . to reflect the seriousness of the offense, to promote respect for the law, and to provide
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just punishment for the offense.” And based on the negative pregnant of the omission of
the § 3553(a)(2)(A) factor from § 3583(e), we have recognized that district courts are
prohibited from considering the retribution factor when deciding whether to reimprison the
defendant following his violation of a condition of his supervised release. See Crudup, 461
F.3d at 439 (“According to § 3583(e), in devising a revocation sentence the district court
is not authorized to consider whether the revocation sentence” furthers the retributive
purpose of sentencing); see also Tapia, 564 U.S. at 326 (similarly interpreting § 3583(c)
as providing that “a court may not take account of retribution (the first purpose listed in
§ 3553(a)(2)) when imposing a term of supervised release”).
Another consequence of this statutory structure is that there are certain factors that
district courts must consider both when deciding whether to impose a term of imprisonment
with supervised release at the original sentencing hearing and when deciding at a
revocation hearing whether to reimprison a defendant who has violated a condition of
supervised release. Thus, for example, the court in both contexts must consider the
defendant’s history and characteristics, the need to deter criminal conduct, and the need to
protect the public. 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C); see also id. §§ 3551(a),
3582(a), 3583(e)(3). This overlap, however, does not suggest that in sanctioning a
violation of a supervised release condition, the court should treat the violation as a new
offense and the sanction as punishment for that offense. Indeed, reading the statute in this
manner could raise constitutional problems. See Johnson, 529 U.S. at 700 (explaining that
“construing revocation and reimprisonment as punishment for the violation of the
conditions of supervised release” would raise “serious constitutional questions” but that
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“[t]reating postrevocation sanctions as part of the penalty for the initial offense . . . avoids
[those] difficulties”).
To implement this statutory sentencing scheme, Congress directed the Sentencing
Commission to promulgate and distribute “guidelines . . . for use . . . in determining the
sentence to be imposed . . . including . . . a determination whether a sentence to a term of
imprisonment should include a requirement that the defendant be placed on a term of
supervised release after imprisonment, and, if so, the appropriate length of such a term.”
28 U.S.C. § 994(a)(1)(C). Congress also directed that the Commission promulgate and
distribute “guidelines or general policy statements regarding the appropriate use of . . . the
provisions for modification of the term or conditions of supervised release and revocation
of supervised release set forth in section 3583(e) of title 18.” Id. § 994(a)(3). The
Commission did this in promulgating Chapter 7.
The Commission explained its approach to revocations and revocation sentencing
in some detail. In the introduction to Chapter 7, it explained that it had considered adopting
an approach that would “sanction violators for the particular conduct triggering the
revocation as if that conduct were being sentenced as new federal criminal conduct.”
U.S.S.G. ch. 7, pt. A, n.3(b) (emphasis added). But wisely, it chose to reject that approach,
stating that “[a]fter lengthy consideration,” it had instead adopted an approach that treats
the “defendant’s failure to follow the court-imposed conditions of . . . supervised release
as a ‘breach of trust.’” Id. Thus, under Chapter 7, “the sentence imposed upon revocation
[is] intended to sanction the violator for failing to abide by the conditions of the court-
ordered supervision, leaving the punishment for any new criminal conduct to the court
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responsible for imposing the sentence for that offense.” Id. (emphasis added). Consistent
with this, the Commission established “three broad grades of violations,” id., which
combine with the defendant’s criminal history category to produce a recommended range
of imprisonment, see id. § 7B1.4. Through this structure, the recommended sanction
correlates with the extent of the defendant’s breach of trust, “taking into account, to a
limited degree, the seriousness of the underlying violation.” Id. ch. 7, pt. A, n.3(b). But
the Commission also admonished courts that the object of a revocation sentence should not
be to impose “an appropriate punishment” for the conduct constituting the supervised
release violation. Id.; see also, e.g., United States v. Gonzalez-Ferretiz, No. 18-cr-117,
2021 WL 4471591, at *5 (E.D. Va. Sept. 28, 2021) (observing that Chapter Seven’s
“‘breach of trust’ theory . . . punishes the violation qua violation but not qua underlying
action that constitutes a violation”). And by refusing to recommend that the sanction for a
supervised release violation be treated as punishment for new criminal conduct, the
Commission also avoided the constitutional difficulties identified in Johnson. See 529 U.S.
at 700.
We turn now to Lewis’s argument that Chapter 7 of the Sentencing Guidelines
nonetheless authorizes punishment for an offense and therefore improperly considers the
prohibited retribution factor of § 3553(a)(2)(A) and that it illegally bases its recommended
sentences on the “seriousness” of the offense, which is also part of the prohibited
retribution factor. See 18 U.S.C. § 3553(a)(2)(A) (providing that a sentence needs “to
reflect the seriousness of the offense . . . and to provide just punishment for the offense”
(emphasis added)).
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First, we observe that nowhere does Chapter 7 characterize the reimprisonment
sanction as punishment for a new offense, as Lewis suggests. Indeed, it explicitly rejects
that notion. Regardless, Lewis argues that the lack of punishment language in Chapter 7
is not controlling because the Chapter nonetheless functions in substance to impose
punishment for an offense and therefore violates §§ 3583(e) and 3553(a)(2)(A). This
argument, however, requires that we understand the term “offense” in § 3553(a)(2)(A) to
include supervised release violations. But we conclude otherwise.
The word “offense” as used throughout § 3553(a) refers to the offense of conviction
for which the defendant was originally sentenced, not the new conduct violating his
supervised release conditions. Section 3551(a) provides that on conviction for a federal
offense, the defendant must be sentenced so as to achieve the four purposes of sentencing
as set forth in § 3553(a)(2). And the “offense” in § 3553(a)(2) is thus the offense for which
the defendant has been convicted. Moreover, § 3553(a) is a general sentencing provision,
and its meaning does not change when considered in the context of supervised release.
Therefore, when § 3583(c) and (e) refer to § 3553(a) offense factors, the offense referred
to in § 3553(a) is the original offense for which the defendant was sentenced, not the
violation of a condition of supervised release, as Lewis would have it.
Also, Lewis’s argument equating “the offense” in § 3553(a)(2)(A) with the
defendant’s supervised release violation is inconsistent with the fact that supervised release
is part of the original sentence, as noted above. The Supreme Court expressly recognized
in Johnson that when a defendant’s term of supervised release is revoked and he is
reimprisoned, such “postrevocation sanctions [become] part of the penalty for the initial
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offense.” 529 U.S. at 700 (emphasis added); see also Haymond, 139 S. Ct. at 2379–80
(same). That “postrevocation penalties [thus] relate to the original offense,” Johnson, 529
U.S. at 701, further confirms that “the offense” in § 3553(a) must be read as referring
exclusively to the offense of conviction, not the defendant’s supervised release violation.
Cf. United States v. Johnson, 640 F.3d 195, 203 (6th Cir. 2011) (recognizing that “when
sentencing upon revocation of supervised release,” § 3583(e) requires the district court to
“consider, among the other applicable § 3553(a) factors, ‘the nature and circumstances of
the offense’” and that “[t]he ‘offense’ so referenced is the original offense of conviction”).
This understanding becomes even clearer when § 3583(c) is considered. That
section requires district courts to consider the exact same subset of the § 3553(a) factors
when imposing supervised release in the first place as it must when deciding whether to
revoke it. Section 3583(c) thus requires that a district court, when deciding whether to
impose a term of supervised release at the original sentencing, not consider the need for
the supervised-release portion of the sentence to provide punishment for the offense for
which the defendant is being sentenced. See Tapia, 564 U.S. at 326; Concepcion v. United
States, 597 U.S. 481, 494 (2022). And this same standard is applicable when the court is
deciding how to address the defendant’s violation of a condition of his supervised release.
The provisions — § 3583(c) and § 3583(e) — function with the same textual standards.
Consequently, when a district court revokes a defendant’s term of supervised release and
“require[s] [him] to serve in prison all or part of the term of supervised release,” 18 U.S.C.
§ 3583(e)(3), the court is not imposing such reimprisonment to punish the defendant for
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the original criminal offense; the punishment purpose of sentencing was already fully
addressed with the original sentence of imprisonment.
This understanding of revocation sentences is also fully consistent with how Chapter
7 treats a violation of supervised release. As the introduction explains, when a defendant’s
violation of supervised release constitutes a new criminal offense, a conviction for that new
offense will call for a separate sentence imposed in accordance with §§ 3551(a) and 3553(a)
or applicable state law. The violation of the supervised release condition, however, is
neither that new offense nor even the original offense for which supervised release was
imposed. It is a violation of a condition imposed by the court at the original sentencing,
nothing more. Thus, as Chapter 7 explains:
While the nature of the conduct leading to the revocation [is] considered in measuring the extent of the breach of trust, imposition of an appropriate punishment for any new criminal conduct [is] not . . . the primary goal of a revocation sentence. Instead, the sentence imposed upon revocation [is] intended to sanction the violator for failing to abide by the conditions of the court-ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.
U.S.S.G. ch. 7, pt. A, n.3(b). This becomes especially clear in those circumstances where
the supervised release violation does not even involve a new criminal offense but only a
technical violation of one of the conditions of the defendant’s supervised release.
In his Chapter 7 challenge, Lewis also argues separately that by creating three grades
of violations, Chapter 7 necessarily considers the “seriousness of the offense,” in violation
of § 3583(e)(3)’s omission of the retributive factor in § 3553(a)(2)(A). But this argument
again relies on the false premise that “the offense” in § 3553(a) should be read as including
the defendant’s supervised release violation. In addition, the argument overlooks that
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§ 3553(a)(2)(A) operates as an integrated whole so as to give effect to one of the four main
purposes of sentencing generally — namely, to provide retribution or punishment. See,
e.g., Tapia, 564 U.S. at 325–26 (noting that “a court may not take account of retribution
(the first purpose listed in § 3553(a)(2)) when imposing a term of supervised release”);
Concepcion, 597 U.S. at 494 (explaining that “Congress has expressly precluded district
courts from considering the need for retribution” when “determining whether to include a
term of supervised release[] and the length of any such term”); Rita v. United States, 551
U.S. 338, 347–48 (2007). Thus, we cannot agree with Lewis that the “seriousness” phrase
in § 3553(a)(2)(A) can be isolated from the rest of that provision and read to restrict a
district court from even considering the relative seriousness of the conduct underlying the
defendant’s supervised release violation.
Indeed, Lewis’s argument that district courts are prohibited from considering the
seriousness of the defendant’s supervised release violation is inconsistent with the very
discretion that § 3583(e) gives district courts when imposing revocation sentences. In
recommending sentencing ranges in Chapter 7, the Sentencing Commission is merely
addressing this discretion and providing advice on how much of the supervised release
term should be converted to reimprisonment. This follows from the text of § 3583(e),
which authorizes district courts to “require the defendant to serve in prison all or part of
the term of supervised release authorized by statute for the offense that resulted in such
term of supervised release.” 18 U.S.C. § 3583(e)(3) (emphasis added). Because the court
must choose between “all” or “part” of the term to convert to imprisonment, the court is
given authority to select from a range of sentences, implying authority to assess the
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seriousness of the conduct underlying the supervised release violation. Chapter 7 properly
provides advice on this. The statutory provision further directs, as relevant to the term of
reimprisonment, that a court also consider factors such as “the nature and circumstances
of the offense” for which the defendant was originally sentenced. Id. § 3553(a)(1)
(emphasis added).
At bottom, we reject Lewis’s argument that Chapter 7 of the Sentencing Guidelines
“must be struck down” as inconsistent with § 3583(e)’s prohibition of using the
§ 3553(a)(2)(A) factor when revoking the defendant’s term of supervised release and
requiring him to return to prison. And accordingly, it follows that there is no merit to his
argument that the district court’s consideration and application of Chapter 7 rendered
Lewis’s revocation sentence plainly unreasonable. Indeed, the district court was required
to consider Chapter 7. See 18 U.S.C. § 3583(e) (requiring consideration of § 3553(a)(4),
which includes “in the case of a violation of . . . supervised release, the applicable
guidelines or policy statements issued by the Sentencing Commission”); see also 28 U.S.C.
§ 994(a)(1), (3).
III
Apart from his challenge of Chapter 7, Lewis also challenges the district court’s
explanation of his sentence as constituting an independent violation of § 3583(e). During
the revocation sentencing, the district court, after hearing from counsel and Lewis himself,
explained the reasons for its revocation sentence, stating that the two “most important
factors” were Lewis’s criminal history — which the court found “horrendous” — and his
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institutional record — which the court found to be “good.” Then, the court added a third
factor, Lewis’s physical condition, which the court recognized to be unfortunate and
permanent. After these explanations, the court then concluded that, “based upon” those
three considerations, a sentence of 20 months was
adequate, but not longer than necessary, to satisfy all the factors set forth in 3553(a), and provide for just punishment, and reflect the extent of the breach of trust evidenced by your breaches of supervised release . . . . I’m giving you a substantial break based upon your physical condition, and what I understand to be your limited life expectancy.
The 20-month sentence imposed was a downward variance from the advisory Guidelines
range of 37 to 46 months’ imprisonment.
Lewis contends that the district court’s sentence was plainly unreasonable because
the court expressed the need (1) “to satisfy all the factors set forth in 3553(a)” and (2) to
“provide just punishment, and reflect the extent of the breach of trust.” He argues that the
court erred in referring to all the § 3553(a) factors, instead of only the factors made
applicable by § 3583(e). And he argues also that the court erred in expressing the need “to
provide just punishment,” which is the prohibited factor of § 3553(a)(2)(A).
To be sure, these references, especially the need to provide just punishment, are
inconsistent with § 3583(e). But even these references are ambiguous when considered in
their overall context. Surely, the reference to all § 3553(a) factors could be construed to
be all those that are applicable, as § 3551(a) provides. And the reference to provide just
punishment was coupled with the reference to “reflect the extent of the breach of trust.”
But more importantly, these references were summarizations of the particulars on
which the court made clear it was relying in selecting the sentence of imprisonment. The
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court explained that it chose its sentence based on (1) Lewis’s criminal history, which was
horrendous, (2) his prison record, which was good, and (3) his physical disability, which
was permanent. And these facts all directly relate to § 3553(a) factors that § 3583(e)(3)
required the court to consider. Moreover, the court said that the third fact was the most
determinative, explaining: “I’m giving you a substantial break based upon your physical
condition, and what I understand to be your limited life expectancy.”
Thus, the factors on which the court actually made its decision were fully
authorized. Simply its references were too broad. In these circumstances, we conclude, as
we did in United States v. Webb, 738 F.3d 638, 642 (4th Cir. 2013), that these references
did not render the court’s sentence plainly unreasonable. In Webb, we held that “mere
reference to such [prohibited] considerations does not render a revocation sentence
procedurally unreasonable when those factors are relevant to, and considered in
conjunction with, the enumerated § 3553(a) factors.” Id. The defendant there contended
that his revocation sentence was plainly unreasonable because the district court mentioned
the prohibited § 3553(a)(2)(A) factor when announcing his 32-month sentence. Id. at 641.
We rejected that argument, however, explaining, just as other courts of appeals have
recognized, that “the factor[] listed in § 3553(a)(2)(A) [is] intertwined with the factors
courts are expressly authorized to consider under § 3583(e).” Id. And, “[g]iven that the
§ 3553(a)(2)(A) factor[] [is] closely related to the factors district courts are instructed to
consider under § 3583(e),” we stated that we “fail[ed] to see how a district court’s reference
to the § 3553(a)(2)(A) sentencing considerations, without more, would automatically
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render a revocation sentence unreasonable.” Id. at 642. Accordingly, we held that such
references did not render the revocation sentence procedurally unreasonable.
The circumstances here are even less aggravated than those in Webb. While the
court made passing references to all § 3553(a) factors and referenced the need “to provide
for just punishment,” the record, considered in its entirety, demonstrates that the court
selected the downward variant sentence of 20 months’ imprisonment because it was
balancing Lewis’s “horrendous” criminal record against Lewis’s good institutional record
and his distressing physical condition. It is clear that the district court did not base Lewis’s
revocation sentence “predominately on” the retributive factor — the standard adopted in
Webb. 738 F.3d at 642.
We accordingly hold that the district court’s brief references did not render Lewis’s
sentence procedurally unreasonable, let alone plainly so.
* * *
For the reasons given, we affirm the district court’s revocation sentence.
AFFIRMED