United States v. Misty Grafton , 624 F. App'x 119 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4328
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MISTY AUTUMN GRAFTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
District Judge. (2:13-cr-00034-JPB-JSK-4)
Submitted: November 20, 2015 Decided: December 17, 2015
Before DUNCAN, DIAZ, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Stephen G. Jory, MCNEER, HIGHLAND, MCMUNN & VARNER, L.C.,
Elkins, West Virginia, for Appellant. William J. Ihlenfeld, II,
United States Attorney, Tara N. Tighe, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Misty Autumn Grafton appeals the district court’s judgment
sentencing her to 37 months’ imprisonment following revocation
of her probation. On appeal, Grafton argues that her sentence
is plainly unreasonable. We vacate Grafton’s sentence and
remand for resentencing.
We will affirm a sentence imposed after revocation of
probation if it is within the statutory maximum and is not
“plainly unreasonable.” United States v. Moulden, 478 F.3d 652,
656-57 (4th Cir. 2007). When reviewing whether a revocation
sentence is plainly unreasonable, we first assess the sentence
for unreasonableness, “follow[ing] generally the procedural and
substantive considerations that we employ in our review of
original sentences.” United States v. Crudup, 461 F.3d 433, 438
(4th Cir. 2006). A probation revocation sentence is
procedurally reasonable if the district court considers the
Chapter Seven advisory policy statement range and the 18 U.S.C.
§ 3553(a) (2012) factors. See 18 U.S.C. § 3565(a) (2012);
Moulden, 478 F.3d at 657.
Here, although the district court considered the § 3553(a)
factors, it failed to calculate and indicate consideration of
the applicable policy statement range. We therefore conclude
that Grafton’s sentence is procedurally unreasonable.
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Having found the sentence unreasonable, we assess next
whether it is plainly unreasonable. “To determine whether a
sentence is plainly unreasonable, this Court looks to the
definition of ‘plain’ used in plain-error analysis.” United
States v. Thompson, 595 F.3d 544, 547–48 (4th Cir. 2010). “For
a sentence to be plainly unreasonable, . . . it must run afoul
of clearly settled law.” Id. at 548.
The district court’s obligation to consider the advisory
policy statement range is settled law in this circuit. Moulden,
478 F.3d at 657. Thus, the court’s failure to consider the
advisory policy statement range renders Grafton’s sentence
plainly unreasonable.
Because Grafton did not preserve this claim for appellate
review, our review is for plain error. See Fed. R. Crim. P.
52(b). To establish plain error, Grafton must demonstrate that
(1) the district court committed an error; (2) the error was
plain; and (3) the error affected her substantial rights.
Henderson v. United States, 133 S. Ct. 1121, 1126 (2013). Even
if these requirements are met, however, this Court will
“exercise [its] discretion to correct the error only if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Nicholson, 676 F.3d
376, 381 (4th Cir. 2012) (internal quotation marks omitted).
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As stated, we recognize a sentencing error and find the
sentence to be plainly unreasonable because it runs afoul of
clearly established law. See Moulden, 478 F.3d at 656; Crudup,
461 F.3d at 439. Additionally, because the sentence imposed by
the district court was well above the advisory policy statement
range calculated by the probation officer, Grafton’s substantial
rights were affected by the error. We cannot tell whether, had
the district court calculated and considered the policy
statement range, it might have given Grafton a lower prison
term. See Thompson, 595 F.3d at 548.
Accordingly, we vacate Grafton’s revocation sentence and
remand for resentencing. 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.
VACATED AND REMANDED
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