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,

(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

(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

(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

(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,

(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

(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.”

(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,

(2011). Section 3551 also specifies that every federal sentence

must include a term of probation, a fine, or a term of imprisonment.

(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.”

§ 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,

(4th Cir. 2020) (quoting

United States v. Johnson,

(2000)). In this manner, “[s]upervised release

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fulfills rehabilitative ends, distinct from those served by incarceration.” Johnson,

.

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.”

(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.”

(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,

(2000) (recognizing that

“postrevocation sanctions” are “part of the penalty for the initial offense”); see also United

States v. Haymond,

(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.”

(a); see also Tapia,

.

Conversely, supervised release may neither be imposed nor revoked to punish the

defendant for the offense. See

(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,

§ 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,

(“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,

(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.

(a)(1), (a)(2)(B), (a)(2)(C); see also

§§ 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.”

(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.”

§ 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,

, 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

(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,

(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,

; Concepcion v. United

States,

(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,”

(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,

(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,

, 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.”

(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.

§ 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

(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

(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

19 USCA4 Appeal: 22-4291 Doc: 40 Filed: 01/08/2024 Pg: 20 of 22

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,

(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.

.

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

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