USCA4 Appeal: 22-4643 Doc: 17 Filed: 01/31/2024 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4643

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL D. WHITAKER,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Bruce H. Hendricks, District Judge. (7:15-cr-00533-BHH-5)

Submitted: January 26, 2024 Decided: January 31, 2024

Before NIEMEYER and THACKER, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Judea Shechinah Davis, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. Adair F. Boroughs, United States Attorney, William J. Watkins, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4643 Doc: 17 Filed: 01/31/2024 Pg: 2 of 4

PER CURIAM:

Michael D. Whitaker appeals the 60-month sentence imposed upon revocation of

his supervised release. The sentence was the result of an upward variance and constituted

the statutory maximum sentence. On appeal, Whitaker argues that the revocation sentence

is plainly unreasonable because the district court failed to consider each of his mitigating

arguments and did not adequately explain the chosen sentence. We affirm.

“A district court has broad discretion when imposing a sentence upon revocation of

supervised release.” United States v. Webb,

(4th Cir. 2013). Thus, we

will “affirm a revocation sentence so long as it is within the prescribed statutory range and

is not plainly unreasonable.” United States v. Coston,

(4th Cir. 2020)

(internal quotation marks omitted). When reviewing whether a revocation sentence is

plainly unreasonable, we first “determine whether the sentence is unreasonable at all.”

(internal quotation marks omitted). “In making this determination, we follow generally the

procedural and substantive considerations that we employ in our review of original

sentences, with some necessary modifications to take into account the unique nature of

supervised release revocation sentences.” United States v. Slappy,

(4th

Cir. 2017) (ellipses and 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,” Coston,

(internal quotation

marks omitted), and if the explanation indicates “that the court considered any potentially

2 USCA4 Appeal: 22-4643 Doc: 17 Filed: 01/31/2024 Pg: 3 of 4

meritorious arguments raised by the parties,” United States v. Patterson,

(4th Cir. 2020) (internal quotation marks omitted).

“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). Accordingly, 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 this [c]ourt can

meaningfully consider the procedural reasonableness of the revocation sentence.” Slappy,

. A procedural sentencing error is harmless, however, if the government

proves “that the error did not have a substantial and injurious effect or influence on the

result.” United States v. Ross,

(4th Cir. 2019) (internal quotation marks

omitted).

Here, the district court adequately explained its decision to impose an upward

variant sentence. And, while the court did not explicitly address several of Whitaker’s

arguments in mitigation, we conclude that the Government has satisfied its burden of

showing that any error is harmless. Whitaker’s mitigation arguments based on his full-time

employment before his arrest, negative drug tests after testing positive for drugs, and

transportation difficulties attending drug and sex offender treatment were not particularly

compelling in light of the court’s rationale for imposing its chosen sentence. We are thus

persuaded that, in this case, the court’s failure to expressly acknowledge some of

3 USCA4 Appeal: 22-4643 Doc: 17 Filed: 01/31/2024 Pg: 4 of 4

Whitaker’s mitigation arguments is harmless. Our review otherwise confirms that

Whitaker’s sentence is procedurally and substantively reasonable.

We therefore 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

4