UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4108

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEPHEN ANTHONY GRAHAM,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:15-cr-00007-JPJ-PMS-1)

Submitted: November 30, 2020 Decided: December 16, 2020

Before KING, KEENAN, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dana R. Cormier, DANA R. CORMIER, PLC, Staunton, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Stephen Anthony Graham appeals the sentence imposed following the third

revocation of his supervised release. Based in part on Graham’s rapid return to drug use

and his participation in a methamphetamine conspiracy for nearly the entirety of his time

on supervised release, the district court revoked Graham’s federal term of supervised

release and sentenced him to 24 months’ imprisonment, to be served consecutive to the 84-

month sentence imposed on the conspiracy offense, and a 4-year term of supervised release.

On appeal, Graham contends that the district court erred by imposing a term of supervised

release in excess of the statutory maximum and by imposing a procedurally and

substantively unreasonable revocation sentence. We affirm.

District courts have “broad discretion when imposing a sentence upon revocation of

supervised release.” United States v. Webb,

(4th Cir. 2013). In light of

this discretion, we “will affirm a revocation sentence if it is within the statutory maximum

and is not plainly unreasonable.”

(internal quotation marks omitted). We “first consider

whether the sentence imposed is procedurally or substantively unreasonable.”

Only

when the sentence is unreasonable will we determine whether the sentence “is plainly so.”

(internal quotation marks omitted).

“A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable

(a) factors.” United

States v. Slappy,

(4th Cir. 2017) (footnote omitted); see

(e) (listing relevant factors). “[A] revocation sentence is substantively reasonable if

2 the court sufficiently states a proper basis for its conclusion that the defendant should

receive the sentence imposed.” Slappy,

(alterations and internal quotation

marks omitted). We presume that a sentence within the applicable policy statement range

is reasonable. United States v. Padgett,

(4th Cir. 2015).

In fashioning an appropriate sentence, “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 history of the violator.” U.S. Sentencing Guidelines

Manual ch. 7, pt. A(3)(b) (2018); see Webb,

. “A court need not be as

detailed or specific when imposing a revocation sentence as it must be when imposing a

post-conviction sentence, but it still must provide a statement of reasons for the sentence

imposed.” United States v. Thompson,

(4th Cir. 2010) (internal

quotation marks omitted). The court “must address the parties’ nonfrivolous arguments in

favor of a particular sentence, and if the court rejects those arguments, it must explain why

in a detailed-enough manner that [we] can meaningfully consider the procedural

reasonableness of the revocation sentence.” Slappy,

. An explanation is

sufficient if we can determine “that the sentencing court considered the applicable

sentencing factors with regard to the particular defendant before it and also considered any

potentially meritorious arguments raised by the parties with regard to sentencing.” United

States v. Gibbs,

(4th Cir. 2018) (alterations and internal quotation marks

omitted).

After review of the record, we conclude that the district court did not impose a term

of supervised release in excess of the statutory maximum. Graham had a previous felony

3 drug conviction at the time of his 2012 conviction for conspiring to possess with intent to

distribute less than 50 kilograms of marijuana, thereby increasing the statutory penalties to

a maximum of 10 years’ imprisonment, and, “[n]otwithstanding [§] 3583, . . . a term of

supervised release of at least 4 years.”

(b)(1)(D). We have recognized that

§ 3583’s statutory cap “does not apply to statutes . . . whose own mandatory minimum

periods of supervised release are the same as, or exceed, the maximum periods provided by

§ 3583.” United States v. Pratt,

(4th Cir. 2001) (emphasis in original).

We have also found that “the absence of a specified maximum simply means that the

maximum is life.” United States v. Turner,

(4th Cir. 2004) (holding

that, as matter of statutory construction, absence of statutory maximum in

(e) means life imprisonment is maximum sentence). Thus, Graham’s 2012

marijuana conspiracy conviction subjected him to a term of supervised release of at least

four years up to a maximum term of life.

Under

(h), the district court, upon a subsequent revocation of

supervised release for the same underlying offense, must aggregate any prior terms of

imprisonment when the statute provides for a maximum term of supervised release of less

than life and subtract that from the maximum supervised release that can be imposed.

United States v. Maxwell,

(4th Cir. 2002). However, § 3583(h)’s

subtraction rule does not apply where a statute authorizes a maximum supervised release

term of life. See United States v. Crowder,

(9th Cir. 2013) (holding

that, “upon revocation of an initial term of supervised release, § 3583(h) does not bar the

imposition of a subsequent lifetime term of supervised release, even when accompanied by

4 a term of imprisonment”); United States v. Cassesse,

(2d Cir. 2012)

(rejecting defendant’s argument to reduce his renewed lifetime term of supervised release

by length of imprisonment on supervised release violation).

Here, Graham was subject to a statutory maximum supervised release term of life.

Thus, the subtraction or aggregation rule of § 3583(h) does not limit the district court’s

ability to impose an additional term of supervised release after his third revocation.

Because the district court was authorized to impose a term of supervised release up to the

maximum allowed by the statute of conviction, see

(h), and that

maximum here was a term of life, see

(b)(1)(D), we conclude that the four-

year term of supervised release following the 24-month active sentence imposed upon the

revocation of Graham’s supervised release did not exceed the statutory maximum.

Turning to Graham’s second claim on appeal, we find that his 24-month custodial

sentence was both procedurally and substantively reasonable. The district court properly

calculated and considered the applicable policy statement range. The district court stated

that it had considered counsel’s arguments and offered a sufficient explanation of the

relevant § 3553(a) factors, noting specifically the nature and circumstances of the offense,

the history and characteristics of the defendant, the need to provide adequate deterrence,

and the need to protect the public from further crimes by Graham. See

(a), 3583(e); see also United States v. Patterson,

(4th Cir.

2020) (noting that “the record must reflect some affirmation that the court considered the

arguments in mitigation made by a defendant”). Finally, the court stated a proper basis for

its conclusion that Graham should receive the sentence imposed.

5 Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

6