UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4290


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JIM NOVAK, a/k/a/ James Novak,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:09-cr-00168-F-1)


Submitted:   November 29, 2012            Decided:   December 19, 2012


Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James Novak was convicted of several drug distribution

charges in 2005.        Although his Guidelines range was 180 to 181

months’ imprisonment, the district court granted a significant

downward departure, sentencing him to 57 months in prison.                              In

2009, Novak was placed on supervised release.                             He failed to

comply with the terms of supervised release, and the probation

office moved for revocation.                The district court revoked Novak's

supervised    release,        noting       that   Novak    had    already     benefitted

from a substantial downward departure in his initial sentencing,

he   repeatedly      failed    to    comply       with    the    terms   of   supervised

release, and he had a serious drug or alcohol problem.                                 The

district     court    stated        that    Novak    “has       certainly     had    every

opportunity and he has blown it.”                    (J.A. 19).          The court also

noted that, due to the downward departure in sentencing upon

Novak’s conviction, he received “a tremendous break,” he “didn’t

take advantage of it,” and the court “just d[id]n’t understand

it.”   (J.A. 20).       The court opined that “the only thing I can do

for him is to get him in jail long enough to go through the

intensive    drug     treatment        program.”          (J.A.    20).       With    that

observation, and recognizing that the U.S. Sentencing Guidelines

Policy Statement range upon revocation was four to ten months,

the court revoked Novak’s supervised release and sentenced him



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to thirty-six months’ imprisonment, followed by two years of

supervised release.

            Novak appealed.                We vacated his sentence and remanded

for resentencing in light of the Supreme Court’s intervening

decision    in     Tapia    v.    United      States,      131       S.    Ct.    2382    (2011)

(holding that the availability of drug treatment could not be

the basis for an upward departure in sentencing).                                United States

v. Novak, No. 11-4358 (4th Cir. Dec. 21, 2011) (unpublished).

            On     remand,       Novak      noted       that    he       had    served    eleven

months’ imprisonment, that he had a potential job opportunity if

released, and that he intended to return to school following his

release.      He    said    he       had    begun   taking       antidepressants           while

incarcerated.        Although there was no substance abuse program at

his place of incarceration, he had received some treatment prior

to his current term of incarceration and was on a wait list for

a    community-based        alcohol          treatment         program         following    his

release.      He also said that, while incarcerated, he found a

shank in the prison yard and, rather than selling it or using

it, he turned it over to prison guards.                        He asked for a sentence

of   time    served      and     a    return       to    supervised            release.     The

Government       asked     the    court       to    reimpose         a    thirty-six       month

sentence.

            The district court reiterated its findings as to the

reasons for revocation, and sentenced Novak to a twenty-four

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month term of imprisonment.                    The court explained the departure

from the four-to-ten month Guidelines Policy Statement range by

noting that it had awarded a substantial downward departure in

Novak’s    initial        sentencing,          and   Novak         had    not    used        to   his

advantage the opportunity given to him by the district court.

Novak again appeals, contending the twenty-four-month sentence

was   plainly      unreasonable          because      the    district           court     did     not

address Novak’s arguments for a lower term of imprisonment.

             A     sentence       imposed       upon      revocation            of    supervised

release    will      be       upheld     unless      it   is       plainly       unreasonable.

United States v. Crudup, 

, 438 (4th Cir. 2006).                                         A

sentence is procedurally reasonable if the court considers the

policy statements in the Guidelines and indicates the reasons

for its chosen sentence.                 

States v. Thompson,

, 547 (4th Cir. 2010).

             In     Tapia,       the     Supreme      Court        held    that      18      U.S.C.

§ 3582(a) "precludes federal courts from imposing or lengthening

a   prison       term     in    order     to    promote        a    criminal         defendant’s

, 2389.                   Thus, a district

court     erred     in        imposing    a    longer       sentence        than        it    would

otherwise have imposed with the purpose of insuring that the

defendant would be eligible for a drug treatment program while

incarcerated.           

the holding of Tapia to

resentencing proceedings following the revocation of supervised

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release.      United States v. Bennett, __ F.3d __, __, 

, slip op. at 2, 7 (4th Cir. Oct. 25, 2012) (No. 11-

4401).

            Novak    contends     that    on    remand,     the    district       court

committed procedural error by not considering his arguments in

mitigation.     Although the district court did not specifically

discuss these arguments, the court gave a valid reason for the

sentence    imposed    —   the    approximately       60%    downward       departure

Novak received at his initial sentencing, and his squandering of

that   opportunity     when    released.         Moreover,      only      one    fact   —

Novak’s    seeking     treatment    for       his   depression      —     favors     his

position.     Novak’s new wife, whose support he cited in the first

revocation proceeding, had left him by the time of the second

revocation proceeding; the job prospect was not certain; and

Novak had not previously been able to maintain steady employment

or to follow through with substance abuse treatment.                            Finally,

his decision not to sell or use the shank he found in the prison

yard is hardly laudable; declining to commit a crime is, or

should be, the norm, not the salutary exception to the rule.

            These facts, considered together, make clear that the

district court did not commit procedural error, and that the

sentence was not plainly unreasonable.                Accordingly, we affirm.

We   dispense   with    oral     argument      because    the     facts    and    legal



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contentions are adequately presented on the record and argument

would not significantly aid the decisional process.

                                                       AFFIRMED




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