NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________

No. 20-3490 ________________

UNITED STATES OF AMERICA

v.

ZHYKEIR MALIK BURDINE,

Appellant ________________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 5-19-cr-00104-001) District Judge: Honorable Jeffrey L. Schmehl ________________

Submitted under Third Circuit LAR 34.1(a) on June 24, 2021

Before: CHAGARES, PORTER and ROTH, Circuit Judges

(Opinion filed: December 2, 2021)

________________

OPINION* ________________

ROTH, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Zhykeir Burdine appeals the procedural and substantive reasonableness of his

sentence upon revocation of his supervised release. We will affirm.1

I.

In 2019, Burdine pleaded guilty to bank fraud and was sentenced to one month’s

imprisonment and three years’ supervision. In April 2020, he was arrested and charged

in state court with several crimes relating to breaking into his ex-girlfriend’s home and

assaulting her. He was also charged in federal court with violating the terms of his

supervision because of those crimes, failing to notify probation of other police contact in

February 2020, and failing to enroll in drug treatment. Burdine pleaded nolo contendere

to the supervision violations. The Guidelines range was twenty-four to thirty months’

imprisonment. The District Court sentenced him to twenty-seven months’ imprisonment

and nine months’ supervision. Burdine appeals that sentence.

II.

In imposing a sentence, a district court must consider, inter alia: (1) “the nature

and circumstances of the offense and the history and characteristics of the defendant”; (2)

“the need for the sentence imposed . . . to afford adequate deterrence to criminal

conduct”, “to protect the public from further crimes of the defendant”, and “to provide

the defendant with needed educational or vocational training, medical care, or other

correctional treatment”; (3) “the kinds of sentence and the sentencing range established

1 The District Court had jurisdiction under

and

(e). We have jurisdiction under

and

. 2 for” the violation under the Guidelines; and (4) “the need to avoid unwarranted sentence

disparities” among similarly situated defendants.2 Burdine argues that the District Court

failed to consider several § 3553(a) factors, including his educational background and

medical needs, the need to avoid sentencing disparities, and possible alternatives to

incarceration. Because Burdine did not raise these issues below, we review for plain

error.3 We find none.

A district “court need not . . . discuss and make findings as to each of the §

3553(a) factors if the record makes clear the court took the factors into account in

sentencing.”4 The District Court took the § 3553(a) factors into account here. It heard

Burdine’s account of the violation. It considered Burdine’s criminal history, stating that

Burdine “ha[s] a lot” of prior offenses that are “starting to add up.”5 It considered

deterrence, stating that it gave Burdine a “break” in his original sentence, that his

violation occurred just five months into his supervision, and that “when [Burdine]

eventually get[s] out” he should “really try to stay on the right side of law enforcement.”6

It considered the need to avoid sentencing disparities, stating that Burdine’s particular

violation was “extremely serious.”7 It considered Burdine’s argument that he should

2

(a); see also

§ 3583(e)(3) (requiring courts to consider certain § 3553(a) factors in deciding to revoke supervision). 3 See United States v. Flores-Mejia,

(3d Cir. 2014). 4 United States v. Bungar,

(3d Cir. 2007) (citation and quotation marks omitted). 5 Appx. 28:18–20. 6 Appx. 28:21–23, 35:12–23. 7 Appx. 35:18–22. Notably, Burdine does not even suggest that twenty-seven months’ imprisonment is out of line with similar revocations of supervision. 3 receive a non-custodial sentence. It considered the government’s argument that

incarceration is necessary for deterrence and to protect the public (i.e., Burdine’s ex-

girlfriend). And it considered the Guidelines, imposing a sentence in the middle of the

advisory range. Failing explicitly to discuss purported educational and medical needs

(that Burdine still has not identified)8 is not plain error.

Burdine also argues that twenty-seven months’ imprisonment is substantively

unreasonable because this was his first violation of supervision. We review the

reasonableness of a revocation of supervision for abuse of discretion.9 The District Court

determined that a middle-of-the-Guidelines sentence was necessary after considering the

appropriate sentencing factors, including Burdine’s lengthy criminal history. A

Guidelines sentence is presumptively reasonable,10 and a district court’s decision “not to

give . . . mitigating factors the weight that [the defendant] contends they deserve does not

render [the] sentence unreasonable.”11 Accordingly, the District Court did not abuse its

discretion.

III.

We will affirm the judgment of sentence of the District Court.

8 In the Pre-Sentence Report (PSR), prepared for his original sentencing, the Probation Office stated that Burdine reported no chronic mental or physical health issues and had a high school diploma. 9 See United States v. Wise,

(3d Cir. 2008). 10 United States v. Lacerda,

(3d Cir. 2020) (citation omitted). 11 United States v. Lessner,

(3d Cir. 2007). Additionally, although Burdine has not previously violated federally imposed terms of supervision, his PSR shows that he in fact violated state court-imposed probation in 2019. 4