United States v. Hollie Chaimowitz , 554 F. App'x 135 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4366
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOLLIE LYNN CHAIMOWITZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00366-BO-1)
Submitted: January 15, 2014 Decided: February 5, 2014
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hollie Lynn Chaimowitz appeals the twenty-four month
sentence imposed upon revocation of her term of supervised
release. On appeal, Chaimowitz challenges the procedural and
substantive reasonableness of her sentence. For the reasons
that follow, we vacate the court’s judgment and remand for
resentencing.
In examining a sentence imposed upon revocation of
supervised release, this court “takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (quotation marks omitted). We will affirm a
revocation sentence if it falls within the statutory range and
is not “plainly unreasonable.” United States v. Crudup, 461
F.3d 433, 437 (4th Cir. 2006) (quotation marks omitted). We
must first determine whether the sentence is unreasonable, using
the same general analysis employed in review of original
sentences. Id. at 438. A revocation sentence is procedurally
reasonable if the court has considered the policy statements
contained in Chapter Seven of the Guidelines Manual and the
applicable 18 U.S.C. § 3553(a) (2012) factors, Crudup, 461 F.3d
at 440, and provides an adequate explanation for the sentence it
imposes. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
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2010). If the sentence is procedurally or substantively
unreasonable, we will consider whether it is “plainly” so.
Crudup, 461 F.3d at 439.
Chaimowitz first argues that court committed
procedural sentencing error by refusing to provide her an
opportunity to allocute. Because Chaimowitz did not raise this
issue in the district court, we review it for plain error.
United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
To establish plain error, Chaimowitz must demonstrate that
(1) the district court erred, (2) the error was plain, and (3)
the error affected her substantial rights. Henderson v. United
States, 133 S. Ct. 1121, 1126 (2013). A “plain error” is one
that is “clear” or “obvious” under “the settled law of the
Supreme Court or this circuit.” United States v. Carthorne, 726
F.3d 503, 516 (4th Cir. 2013) (quotation marks omitted). Even
if these requirements are met, we will exercise our discretion
to correct the error “only if it would seriously affect the
fairness, integrity or public reputation of judicial
proceedings.” Id. at 510 (quotation marks omitted).
A defendant at a supervised revocation proceeding is
entitled to “an opportunity to make a statement and present any
information in mitigation.” Fed. R. Crim. P. 32.1(b)(2)(E).
This right to allocution is not satisfied by “[m]erely affording
the Defendant’s counsel the opportunity to speak;” instead,
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“[t]rial judges should leave no room for doubt that the
defendant has been issued a personal invitation to speak prior
to sentencing.” United States v. Cole, 27 F.3d 996, 998 (4th
Cir. 1994) (quotation marks omitted). “As the Supreme Court has
noted, ‘[t]he most persuasive counsel may not be able to speak
for a defendant as the defendant might, with halting eloquence,
speak for himself.’” Muhammad, 478 F.3d at 249 (quoting Green
v. United States, 365 U.S. 301, 304 (1961) (plurality opinion)).
Our review of the record demonstrates no reversible
error on this basis. While we are troubled by the court’s
apparent hostility to the efforts of both Chaimowitz and her
counsel to raise pertinent issues in her defense, we cannot
conclude that the court plainly deprived Chaimowitz of her right
to allocute. On several occasions, the court addressed
Chaimowitz personally and invited her to address her sentence.
Chaimowitz cites several cases to suggest that she was deprived
a meaningful opportunity to allocute on her own behalf, but we
find these cases distinguishable. The court did not expressly
limit the topics on which Chaimowitz could speak. Nor did the
court’s comments have an apparent chilling effect on
Chaimowitz’s allocution. Rather, the record demonstrates that,
despite the court’s interjections and commentary, Chaimowitz
addressed mitigating factors beyond those prompted by the
court’s questions, and she was provided an opportunity to raise
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issues she found relevant when speaking personally to the court.
Thus, this claim entitles Chaimowitz to no relief.
Chaimowitz next argues that the district court plainly
procedurally erred by failing to adequately articulate the basis
for its chosen sentence. In explaining a sentence, the district
court is not required to “robotically tick through § 3553(a)’s
every subsection, particularly when imposing a within-Guidelines
sentence.” United States v. Powell, 650 F.3d 388, 395 (4th Cir.
2011) (quotation marks omitted). However, the court must
conduct an “individualized assessment justifying the sentence
imposed and rejection of arguments for a higher or lower
sentence based on § 3553.” United States v. Lynn, 592 F.3d 572,
584 (4th Cir. 2010) (quotation marks omitted). Where the
defendant or prosecutor presents “nonfrivolous reasons” for
imposing a different sentence, “a district judge should address
the party’s arguments and explain why he has rejected those
arguments.” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quotation marks omitted). The district court must
provide sufficient explanation to demonstrate that it
“considered the parties’ arguments and ha[d] a reasoned basis
for exercising [its] own legal decisionmaking authority.”
Rita v. United States, 551 U.S. 338, 356 (2007). Such
explanation is necessary to “promote the perception of fair
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sentencing” and to permit “meaningful appellate review.”
Gall v. United States, 552 U.S. 38, 50 (2007).
In imposing a revocation sentence, the court need not
provide as detailed an explanation as that required in imposing
an original sentence, but it “must provide a statement of
reasons for the sentence imposed.” Moulden, 478 F.3d at 657.
Although “[t]he context surrounding a district court’s
explanation may imbue it with enough content for us to evaluate
both whether the court considered the § 3553(a) factors and
whether it did so properly,” United States v. Montes-Pineda, 445
F.3d 375, 381 (4th Cir. 2006), Supreme Court precedent precludes
us from relying upon our own assumptions about the court’s
rationale in imposing a sentence. “Rather, ‘the district
judge,’ not an appellate court, ‘must make an individualized
assessment based on the facts presented’ to him.” Carter, 564
F.3d at 329 (quoting Gall, 552 U.S. at 49-50).
In its brief, the Government provides a detailed post
hoc explanation of the court’s sentence, which expands
significantly on the court’s statements during the sentencing
hearing and draws conclusions not clearly evident from comments
the court actually made. While the court’s statements during
the hearing did provide some context for its decisionmaking, we
conclude these statements were plainly inadequate to demonstrate
its meaningful consideration of the nonfrivolous sentencing
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arguments raised by Chaimowitz and her counsel. When coupled
with the court’s demonstrated hostility to Chaimowitz’s
allocution and to counsel’s arguments regarding a disputed
violation, the record provides room to question whether the
court actually considered the arguments Chaimowitz and her
counsel presented in mitigation before it imposed the statutory
maximum term of imprisonment. We find the court’s limited
statements, made before counsel’s detailed arguments in support
of leniency, plainly insufficient to “allow for meaningful
appellate review” or to “promote the perception of fair
sentencing.” Gall, 552 U.S. at 50. Moreover, the Government
does not allege or establish that any such error was harmless. *
Accordingly, we vacate the district court’s judgment
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
*
Because we agree that Chaimowitz’s sentence was plainly
procedurally unreasonable, we need not address her argument that
the sentence was substantively so. Id. at 51.
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