United States of America v.  Christopher Devon Crudup

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4048 
CHRISTOPHER DEVON CRUDUP,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CR-95-181-5-1-F)
Argued: May 26, 2006
Decided: August 7, 2006
Before WILKINS, Chief Judge, SHEDD, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Chief Judge Wilkins and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Jane Ely Pearce, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Christine Wit-
cover Dean, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF

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THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
OPINION
SHEDD, Circuit Judge:
Christopher Crudup appeals his 36-month term of imprisonment
imposed after the district court revoked his supervised release.
Crudup claims that the length of his revocation sentence is unreason-
able.1 We affirm.
I.
In 1996, Crudup pleaded guilty to armed bank robbery and was
sentenced to 63 months’ imprisonment to be followed by 36 months
of supervised release. The district court imposed several conditions on
Crudup’s supervised release, including that he must not engage in any
criminal conduct, he must submit to drug-screen urinalysis, and he
must work regularly at a lawful occupation. After serving his term of
imprisonment, Crudup was released from federal prison in 2000 and
began his 36-month term of supervised release.
In July 2002, Crudup was arrested on various state charges, includ-
ing assaulting a police officer with a deadly weapon and fleeing to
avoid arrest. In September 2002, Crudup pleaded guilty in state court
to the assault and flight charges and was sentenced to approximately
two years of confinement in state prison.
The federal probation officer assigned to supervise Crudup filed a
motion to revoke Crudup’s supervised release based on the state
offenses. During the supervised release revocation hearing, the district
court determined that Crudup violated the terms of his supervised
1Crudup does not challenge the district court’s decision to revoke his
supervised release.
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release by engaging in criminal conduct. Nevertheless, the district
court concluded that "the ends of justice would best be served by
denying the motion for revocation . . . and continuing supervision
under the original terms and conditions imposed in this case." J.A. 15.
The district court warned Crudup, however, that if he violated the
conditions of his supervised release again the court would impose the
maximum applicable statutory revocation sentence — 36 months’
imprisonment.
Crudup was released from state custody in April 2004. Six months
later, on October 5, 2004, Crudup tested positive for using marijuana.
Rather than revoke Crudup’s supervised release based on this viola-
tion of the conditions of his release, the district court gave Crudup
"one last chance" and placed him in a more comprehensive drug-
detection urinalysis program. J.A. 21. Crudup failed to submit to
required drug tests on seven occasions in October and November.
When Crudup finally submitted to a drug test on November 22, he
tested positive for marijuana and cocaine.
The federal probation officer again moved to revoke Crudup’s
supervised release based on his violation of three conditions: (1) fail-
ing to take required drug tests; (2) using illicit drugs; and (3) quitting
his job. The revocation worksheet completed by the probation officer
noted that all three grounds were Grade C violations. The worksheet
also calculated the applicable advisory sentencing range to be 5 to 11
months’ imprisonment based on the policy statements in Chapter 7 of
the United States Sentencing Commission Guidelines Manual.
At the revocation hearing, Crudup did not dispute the factual alle-
gations of the motion for revocation. Crudup also admitted his drug
problem and requested drug treatment. The district court concluded
that Crudup violated the conditions of his supervised release by using
illicit drugs, by refusing to submit to drug tests, and by failing to work
regularly at a lawful occupation. After noting that the recommended
Chapter 7 range was 5 to 11 months, the district court sentenced
Crudup to 36 months’ imprisonment based on his numerous viola-
tions of the conditions of his supervised release and the district
court’s previous warning to Crudup that he would get the maximum
statutory revocation sentence if he continued to violate his release
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conditions. The district court also recommended that Crudup receive
intensive drug treatment while incarcerated.
II.
Crudup’s only argument is that the district court’s variance from
the 5 to 11-month advisory sentencing range to the 36-month statu-
tory maximum sentence is unreasonable. Crudup asserts that the advi-
sory range of 5 to 11 months is presumptively reasonable and would
have punished him adequately.
The United States Supreme Court’s recent opinion in United States
v. Booker, 543 U.S. 220 (2005), has engendered comment among sev-
eral circuit courts as to what is the proper standard under which cir-
cuit courts should review supervised release revocation sentences.2
Before addressing the particular facts and circumstances underlying
Crudup’s revocation sentence, we first determine the proper standard
for our review.
A.
Chapter 7 of the Guidelines Manual deals with violations of super-
vised release and probation. Rather than issue guidelines to govern
sentences for these violations, the United States Sentencing Commis-
sion chose instead "to promulgate policy statements only" to give
courts "greater flexibility" in devising revocation sentences. Ch.7,
pt.A, introductory cmts. 1, 3(a).
Congress has provided in 18 U.S.C. § 3742(a)(4) that a defendant
convicted of an "offense for which there is no sentencing guideline"
may appeal his sentence on the ground that it is "plainly unreason-
able." In Booker, the Supreme Court recognized that defendants who
receive supervised release revocation sentences are authorized to
2See United States v. Lewis, 424 F.3d 239 (2nd Cir. 2005); United
States v. Kirby, 418 F.3d 621 (6th Cir. 2005); United States v. Cotton,
399 F.3d 913 (8th Cir. 2005); United States v. Miqbel, 444 F.3d 1173
(9th Cir. 2006); United States v. Tedford, 405 F.3d 1159 (10th Cir.
2005); United States v. Sweeting, 437 F.3d 1105 (11th Cir. 2006).
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appeal under § 3742(a)(4) because these "sentences [are] imposed
where there [i]s no applicable Guideline." 543 U.S. at 262.
Congress also "set[ ] forth standards of review" for sentencing
appeals at 18 U.S.C. § 3742(e). Booker, 543 U.S. at 259. Section
3742(e)(4) applies to supervised release revocation sentences because
it governs sentences "imposed for an offense for which there is no
applicable sentencing guideline." Id. This particular standard of
review requires the courts of appeals to "determine whether the
[supervised release revocation] sentence . . . is plainly unreasonable."
Id.
To remedy what it deemed to be a constitutional defect in the
guidelines, the Supreme Court in Booker excised § 3553(b)(1) and the
standard of review provisions of § 3742(e), thereby effectively ren-
dering the guideline system advisory. United States v. Moreland, 437
F.3d 424, 431-32 (4th Cir. 2006). Thus, it appears that the "plainly
unreasonable" standard of review at § 3742(e)(4) governing super-
vised release revocation sentences is no longer valid.3
3It is arguable that Booker did not affect § 3742(e)(4) at least as it
applies to supervised release revocation sentences. The part of the
Booker majority opinion holding that the guidelines violated the Sixth
Amendment noted that "[i]f the Guidelines as currently written could be
read as merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to differing sets
of facts, their use would not implicate the Sixth Amendment." 543 U.S.
at 233. Before Booker, we, along with the nine other circuits that
addressed the issue, held that the Chapter 7 supervised release policy
statements were "not binding on the courts" and only "provide helpful
assistance to courts in sentencing, but are not mandatory." United States
v. Davis, 53 F.3d 638, 640-41 n.9 (4th Cir. 1995) (cataloguing the circuit
courts holding that the Chapter 7 policy statements are not binding in
supervised release revocation sentences). Although the Supreme Court
had ruled pre-Booker that some policy statements and commentary were
binding on courts, see Stinson v. United States, 508 U.S. 36, 38 (1993)
(stating that commentary that interprets or explains a guideline is authori-
tative); Williams v. United States, 503 U.S. 193, 201 (1992) (holding that
if a "policy statement prohibits a district court from taking a specified
action, the statement is an authoritative guide to the meaning of the
applicable Guideline"), it had not addressed whether the Chapter 7 policy
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Having excised the standards of review statutory provision applica-
ble to sentencing, the Supreme Court proceeded to "infer appropriate
review standards from related statutory language, the structure of the
statute," and other practical considerations. Booker, 543 U.S. at 260-
61. Based on these considerations, the Supreme Court inferred a new
standard of review for sentencing appeals: "[A]ppellate courts [must]
determine whether the sentence ‘is unreasonable’ with regard to [the
factors in] § 3553(a)." Id. at 261.4
Because Booker reviewed an original guideline sentence imposed
after conviction and not a supervised release revocation sentence, the
question remains whether Booker’s unreasonableness standard applies
to revocation sentences.5 Based on our review of the structure of
statements were mandatory and binding. Because the Supreme Court has
not decided this issue, we cannot state with certainty that the post-Booker
Supreme Court would deem § 3742(e)(4) to still be valid as applied to
supervised release revocation sentences. Thus, we are bound by the
Supreme Court’s broad ruling excising § 3742(e) in its entirety.
4Consistent with the mandate of Booker, we now follow the unreason-
ableness standard in our review of original sentences. See United States
v. Hughes, 401 F.3d 540 (4th Cir. 2005); United States v. Green, 436
F.3d 449 (4th Cir. 2006); Moreland, 437 F.3d at 432. We have not, how-
ever, specifically addressed the proper standard of review for supervised
release revocation sentences in a post-Booker published opinion.
5We do not interpret Booker as ruling that supervised release sentences
must be reviewed under the unreasonableness standard instead of the
plainly unreasonable standard. In stating that its new unreasonableness
standard was a practical replacement for the mandatory guidelines, the
Supreme Court in Booker noted that appellate courts were already famil-
iar with the unreasonableness standard because they had experience
applying it in several contexts, including in reviewing supervised release
and probation revocation sentences. 543 U.S. at 262. The Supreme Court
cited several illustrative cases, including United States v. White Face,
383 F.3d 733, 737 (8th Cir. 2004), United States v. Salinas, 365 F.3d
582, 588 (7th Cir. 2004), and United States v. Olabanji, 268 F.3d 636,
637 (9th Cir. 2001). In these three cases, the circuit courts reviewed the
revocation sentences under the "plainly unreasonable" standard of
review. It would be odd to suggest that the Supreme Court intended to
replace the "plainly unreasonable" standard when it cited cases which
used that very standard.
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§ 3742 and other related statutory and guideline provisions, we hold
that revocation sentences should be reviewed to determine whether
they are "plainly unreasonable" with regard to those § 3553(a) factors
applicable to supervised release revocation sentences.6
We first note that the structure of § 3742 suggests that "plainly
unreasonable" is the proper standard of review for revocation sen-
tences. Under § 3742(a)(4) — a provision not invalidated by Booker
— a defendant sentenced for violating supervised release is autho-
rized to appeal only on the ground that his sentence is "plainly unrea-
sonable." We infer from this provision that revocation sentences
should be reviewed under this same standard. It would seem incon-
gruous that a defendant limited to asserting that his revocation sen-
tence is "plainly unreasonable," would be allowed to argue that his
sentence should be reversed because it is "unreasonable."
Related guideline commentary and statutory provisions also sug-
gest that revocation sentences should not be treated exactly the same
as original sentences. For instance, while the guidelines base original
sentences primarily on the severity of the defendant’s criminal con-
duct and criminal history, the commentary to the policy statements in
Chapter 7 make clear that district courts should focus on the defen-
dant’s "failure to follow the court-imposed conditions of . . . super-
vised release as a ‘breach of trust’" when imposing revocation
6The circuit courts that have considered this issue post-Booker either
decline to decide whether plainly unreasonable or unreasonableness is
the proper standard, use Booker’s unreasonableness standard, or state
that unreasonableness is the same as, or similar to, the plainly unreason-
able standard. See Miqbel, 444 F.3d at 1176 n. 5 (ruling that Booker’s
unreasonableness standard displaces plainly unreasonable standard);
Sweeting, 437 F.3d at 1106 (deciding that unreasonableness essentially
the same as plainly unreasonable standard); Lewis, 424 F.3d at 243
(adopting Booker’s reasonableness standard); Kirby, 418 F.3d at 625-26
n.3 (declining to decide if plainly unreasonable or Booker’s unreason-
ableness standard is proper standard because sentence affirmable under
either standard); Tedford, 405 F.3d at 1161 (ruling that reasonableness
has always been the proper standard and remains so after Booker); Cot-
ton, 399 F.3d at 916 (deciding that the Supreme Court’s citation to White
Face in Booker indicates that unreasonableness is the same standard as
plainly unreasonable).
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sentences. Guidelines Manual, ch. 7, pt. A, introductory cmt. 3(b).
"[I]mposition of an appropriate punishment for any new criminal con-
duct [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." Id. In addition, rather than promulgate "a detailed revo-
cation guideline system similar to that applied at the initial sentenc-
ing," the Sentencing Commission opted instead to classify all
revocation conduct into "three broad grades of violations." Id. The
fact that the Sentencing Commission chose to promulgate less precise,
nonbinding policy statements and to focus punishment on violations
of a court order rather than on the particular conduct giving rise to the
revocation, clearly suggests that the Sentencing Commission intended
to give district courts substantial latitude in devising revocation sen-
tences for those defendants who violate a district court’s orders gov-
erning their conduct during supervised release.
Moreover, in enacting 18 U.S.C. § 3583 — the criminal statute
governing supervised release violations and sentences — Congress
expressly provided that some of the sentencing factors listed in
§ 3553(a) applicable to original sentences are not applicable to revo-
cation sentences. See § 3583(e).7 Furthermore, unlike original sen-
tences that have a guideline range and a separate statutory maximum,
the statutory maximum sentence for supervised release revocation
sentences is directly tied to the original term of supervisory release.
Section 3583(e)(3) specifically authorizes the district court to "revoke
a term of supervised release, and require the defendant to serve in
prison all or part of the term of supervised release" imposed at the
time of the original sentencing.
In addition, unlike the two circuit courts that have decided that
there is no difference between unreasonableness and the plainly
unreasonable standard, see Sweeting, 437 F.3d at 1106; Cotton, 399
F.3d at 916, we conclude that Congress intended a distinction
between the two terms. Congress used both terms — "unreasonable"
and "plainly unreasonable" — in § 3742(e), the standard of review
section that Booker excised. Section 3742(e)(3) provided that the
7The Booker Court specifically noted that § 3583 was not affected by
its decision and remains "perfectly valid." 543 U.S. at 258.
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court of appeals should review a sentencing departure from a manda-
tory guideline range to determine if it is "unreasonable." In contrast,
§ 3742(e)(4) provided that the court of appeals should review sen-
tences for offenses for which there is no applicable mandatory guide-
line range to determine if it is "plainly unreasonable." Because there
is no indication that Congress intended the word "plainly" to be sur-
plusage, the best interpretation of these two terms in their context is
that they are not coterminous. Congress clearly intended the word
"plainly" to modify "unreasonable" in some way. See Chickasaw
Nation v. United States, 534 U.S. 84, 85 (2001) (recognizing the
canon of statutory interpretation requiring a court to give effect to
every word of statute unless giving effect would be repugnant to
remainder of statute); United States v. Williams, 364 F.3d 556, 559
(4th Cir. 2004).
In determining whether a sentence is plainly unreasonable, we first
decide whether the sentence is unreasonable. In conducting this
review, we follow generally the procedural and substantive consider-
ations that we employ in our review of original sentences, as outlined
in our recent opinion in Moreland, 437 F.3d at 434, with some neces-
sary modifications to take into account the unique nature of super-
vised release revocation sentences. For instance, as mandated by
§ 3583(e), not all the original sentencing factors of § 3553(a) can be
considered when reviewing a revocation sentence. According to
§ 3583(e), in devising a revocation sentence the district court is not
authorized to consider whether the revocation sentence "reflect[s] the
seriousness of the offense, . . . promote[s] respect for the law, and
. . . provide[s] just punishment for the offense," § 3553(a)(2)(A), or
whether there are other "kinds of sentences available," § 3553(a)(3).
In addition, we also recognize that determining whether a revoca-
tion sentence is unreasonable "entails a deferential appellate posture
concerning issues of fact and the exercise of discretion." See Salinas,
365 F.3d at 588 (quoting United States v. Marvin, 135 F.3d 1129,
1136 (7th Cir. 1998)). Although a district court must consider the
"helpful assistance" contained in the Chapter 7 policy statements,
Davis, 53 F.3d at 640, along with the statutory requirements of § 3583
and the § 3553(a) factors applicable to revocation sentences, "the
court ultimately has ‘broad discretion to revoke its previous sentence
and impose a term of imprisonment’ up to the statutory maximum,"
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Lewis, 424 F.3d at 244 (quoting United States v. Pelensky, 129 F.3d
63, 69 (2d Cir. 1997)).8 Moreover, we agree with the Second Circuit
that "a court’s statement of its reasons for going beyond non-binding
policy statements in imposing a sentence after revoking a defendant’s
supervised release term need not be as specific as has been required
when courts departed from guidelines that were, before Booker, con-
sidered to be mandatory." Lewis, 424 F.3d at 245.9
If we determine based on this review that a revocation sentence is
not unreasonable, the sentence should be affirmed. In such a circum-
stance, we do not proceed to the second prong of our review because
it necessarily follows that a sentence that is not unreasonable is also
not plainly unreasonable. However, if we determine that the revoca-
tion sentence is procedurally or substantively unreasonable, we must
then decide whether the sentence is plainly unreasonable, relying on
the definition of "plain" that we use in our "plain" error analysis.
Thus, for purposes of determining whether an unreasonable sentence
is plainly unreasonable,"‘[p]lain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’" See Hughes, 401 F.3d at 547 (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)).
B.
Having defined the proper standard of review, we now decide
8It makes sense that district courts are given broader latitude to impose
statutory maximum revocation sentences. The risk of a district court
imposing an overly aggressive term of imprisonment is greatly reduced
in the revocation sentence context. No matter how serious the revocation
conduct and how extensive the defendant’s criminal history, the longest
possible revocation sentence a district court can impose is five years. See
18 U.S.C. § 3583(b)(1),(e)(3).
9It would be an odd result if Booker were interpreted to reduce the
level of discretion district courts have always had to devise revocation
sentences under policy statements that have uniformly been deemed non-
binding while giving district courts more discretion to impose original
sentences under guidelines that were deemed binding until Booker. Such
a reading of Booker would place the loose, flexible grid system envi-
sioned by the Sentencing Commission for revocation sentences on the
same level as the precise guideline system devised for original sentences.
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whether Crudup’s 36-month revocation sentence is within the applica-
ble statutory range, see Hughes, 401 F.3d at 546-47, and is not plainly
unreasonable. Because we decide that Crudup’s sentence is within the
prescribed statutory range and is not plainly unreasonable, we affirm.
First, Crudup’s 36-month revocation sentence is within the applica-
ble statutory range. When Crudup was originally sentenced in 1996,
the district court imposed a 36-month term of supervised release to
commence after Crudup completed his term of imprisonment. After
being released from prison, Crudup was subject, pursuant to
§ 3583(e)(3), to a maximum 36-month term of imprisonment if the
district court were to find by a preponderance of the evidence that he
violated any of the conditions of his supervised release. See id.
(authorizing the district court to "revoke a term of supervised release,
and 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 his original sentence) (emphasis added).
Second, Crudup’s revocation sentence is neither procedurally nor
substantively unreasonable. Procedurally, the district court expressly
considered the Chapter 7 advisory policy statement range of 5 to 11
months’ imprisonment,10 and Crudup does not argue that the district
court failed to consider any pertinent § 3553(a) sentencing factors.
Substantively, the district court sufficiently stated a proper basis for
its conclusion that Crudup should be sentenced to the maximum statu-
tory sentence. The district court noted in particular Crudup’s admitted
pattern of violating numerous conditions of his supervised release —
any one of which would have subjected Crudup to the same advisory
5 to 11 month range — despite the fact that the district court had
repeatedly extended leniency to Crudup in an effort to encourage his
compliance. The district court also noted Crudup’s need for substance
abuse treatment, and it recommended that Crudup receive intensive
10We note that the district court correctly did not take into account
Crudup’s 2002 state court convictions in calculating his criminal history
for revocation purposes. Pursuant to § 7B1.4(a), the proper criminal his-
tory for revocation sentence purposes is the "criminal history applicable
at the time the defendant originally was sentenced to a term of supervi-
sion."
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substance abuse training while incarcerated. See United States v. Tso-
sie, 376 F.3d 1210, 1218-19 (10th Cir. 2004) (cataloguing opinions
affirming the imposition of lengthy revocation sentences to allow
defendants to undergo substance abuse treatment while in custody);
§ 3553(a)(2)(D) (authorizing the district court to consider whether the
sentence would provide the defendant with needed substance abuse
treatment). Based on the broad discretion that a district court has to
revoke supervised release and impose a term of imprisonment up to
the statutory maximum, Lewis, 424 F.3d at 244, we cannot say that
the district court’s imposition of the statutory maximum sentence
against Crudup is unreasonable. Because we conclude that Crudup’s
sentence is not unreasonable, it necessarily follows that his sentence
is not plainly unreasonable.
III.
For the foregoing reasons, we conclude that Crudup’s 36-month
revocation sentence is not plainly unreasonable, and we affirm the
judgment of the district court.
AFFIRMED
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