United States v. Montoyua Waller ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4497
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MONTOYUA WALLER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00303-NCT-1)
Submitted: June 30, 2015 Decided: July 21, 2015
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Kathleen A. Gleason, Assistant Federal Public Defenders,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Michael A. DeFranco, Assistant United States
Attorney, Alena K. Baker, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Montoyua Waller appeals the district court’s judgment
revoking his term of supervised release and sentencing him to a
term of 48 months’ imprisonment. Waller’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal but
questioning whether the district court properly found that
Waller had committed a Grade A violation and whether his
48-month sentence is substantively reasonable. Waller has filed
a pro se supplemental brief reiterating issues raised by
counsel. At our request, counsel and the government submitted
supplemental briefs addressing whether Waller’s sentence was
plainly unreasonable because the district court failed to
adequately explain its chosen sentence. For the reasons that
follow, we affirm in part and vacate and remand in part for
resentencing.
To revoke supervised release, a district court need only
find a violation of a condition of release by a preponderance of
the evidence. 18 U.S.C. § 3583(e)(3) (2012). “We review a
district court’s ultimate decision to revoke a defendant’s
supervised release for abuse of discretion” and its “factual
findings underlying a revocation for clear error.” United
States v. Padgett, ___ F.3d ___, , Nos. 14-4625, 14-4627,
2015 WL 3561289, at *1 (4th Cir. June 9, 2015). Credibility
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determinations made by the district court at revocation hearings
rarely are reversed on appeal. See United States v. Cates, 613
F.3d 856, 858 (8th Cir. 2010) (“Witness credibility is
quintessentially a judgment call and virtually unassailable on
appeal.” (internal quotation marks omitted)). Because the
standard of proof is less than that required for a criminal
conviction, the district court may find that the defendant has
violated a condition of his supervised release based on its own
finding of new criminal conduct, even if the defendant is
acquitted on criminal charges arising from the same conduct, or
if the charges against him are dropped. United States v.
Stephenson, 928 F.2d 728, 732 (6th Cir. 1991).
Counsel questions whether the district court properly
found a Grade A violation based on Waller’s new criminal charges
of felony second degree kidnapping and felony extortion.
Counsel argues that the court failed to give any weight to the
fact that Waller himself called the police during the offense,
and failed to consider how this bolstered Waller’s credibility.
Additionally, counsel argues that the district court erred in
denying Waller’s request that the government take more exemplars
of the victim’s handwriting, and that the court should have
reopened the evidentiary portion of the hearing. Counsel
further asserts that because all of the criminal charges upon
which the supervised release violation was based were later
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dismissed or acquitted, the finding of a supervised release
violation should be reversed.
We have thoroughly considered these claims in light of the
record, including the transcript of the revocation hearing at
which both Waller and the victim testified. We find no clear
error in the district court’s factual findings, and that the
government proved the Grade A violation by a preponderance of
the evidence. Accordingly, the claims lack merit, and
revocation of Waller’s supervised release was not an abuse of
discretion.
We now turn to the reasonableness of Waller’s sentence. “A
district court has broad discretion when imposing a sentence
upon revocation of supervised release.” United States v. Webb,
738 F.3d 638, 640 (4th Cir. 2013). “We will affirm a revocation
sentence if it is within the statutory maximum and is not
plainly unreasonable.” Id. (internal quotation marks omitted).
“When reviewing whether a revocation sentence is plainly
unreasonable, we must first determine whether it is unreasonable
at all.” United States v. Thompson, 595 F.3d 544, 546 (4th Cir.
2010). A sentence is plainly unreasonable if it “run[s] afoul
of clearly settled law.” Id. at 548.
A revocation sentence is procedurally reasonable if the
district court adequately explains the sentence after
considering the Sentencing Guidelines’ Chapter Seven policy
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statements and the applicable 18 U.S.C. § 3553(a) (2012)
factors. See 18 U.S.C. § 3583(e) (2012); Thompson, 595 F.3d at
546-47. “Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an ‘individualized assessment’ based on the
particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall v.
United States, 552 U.S. 38, 50 (2007)). “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.”
Thompson, 595 F.3d at 547 (internal quotation marks omitted).
Counsel and Waller argued at sentencing that a sentence
below the policy statement range was appropriate due to the
circumstances of the offense, specifically the victim’s
provocation of the offense conduct by stealing and abandoning
Waller’s ex-wife’s car. Waller pointed out that he had
befriended and mentored the victim, that he himself called
police multiple times as the offense was taking place, and that
he needed to stay out of prison in order to support his family.
Waller asserted that it was the victim’s idea to attempt to
extort money from his girlfriend to pay for the damage to the
car and the lost keys.
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When the court pronounced the sentence of 48 months, which
was at the low end of the policy statement range of 46 to 52
months, the court did not cite or track the 18 U.S.C. § 3553(a)
factors, explain what factors had been considered, or otherwise
articulate how it had weighed the parties’ arguments. Even for
revocation sentences within the policy statement range, “a
district court may not simply impose sentence without giving any
indication of its reasons for doing so.” Id. at 547. While the
court asked questions and made comments at the sentencing
hearing and was clearly very engaged, the court was cut off by
Waller after pronouncing the sentence, and thereafter did not
provide any explanation of its chosen sentence.
Accordingly, being mindful that a sufficient explanation is
necessary “to allow for meaningful appellate review and to
promote the perception of fair sentencing,” Gall, 552 U.S. at
50, we vacate the sentence and remand for resentencing. We
express no opinion regarding the merits of Waller’s request for
a lower sentence. In accordance with Anders, we have reviewed
the entire record and have found no other meritorious issues for
review. We therefore affirm all other aspects of the district
court’s judgment. This court requires that counsel inform
Waller, in writing, of his right to petition the Supreme Court
of the United States for further review. If Waller requests
that a petition be filed, but counsel believes that such a
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petition would be frivolous, counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Waller. 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 IN PART;
VACATED IN PART AND REMANDED
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