United States v. Tyrone Tossie ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5331
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE TOSSIE, a/k/a Popeye,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:95-cr-00039-BO-9)
Submitted: July 29, 2011 Decided: August 12, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:
Tyrone Tossie appeals the district court’s order
revoking his supervised release and imposing a twelve-month term
of imprisonment. He argues that the district court plainly
erred in failing to explain its sentence. For the reasons that
follow, we vacate the sentence and remand for further
proceedings.
This court reviews a sentence imposed upon revocation
of a defendant’s supervised release to determine whether the
sentence is “plainly unreasonable.” United States v. Crudup,
461 F.3d 433, 437 (4th Cir. 2006). In determining whether a
revocation sentence is “plainly unreasonable,” this Court must
first determine whether the sentence is procedurally or
substantively unreasonable. Id. at 438. Although a sentencing
court must consider the Chapter Seven policy statements and the
relevant 18 U.S.C. § 3553(a) (2006) factors in fashioning its
sentence, the sentencing court retains broad discretion to
revoke a defendant’s supervised release and impose a term of
imprisonment up to the statutory maximum. Id. at 439. Because
Tossie did not request a lesser sentence, he must show that any
error was plain and affected his substantial rights. United
States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010).
Although the discretion afforded district courts is
such that this court “may be hard-pressed to find any
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explanation for within-range, revocation sentences insufficient
. . . a district court may not simply impose sentence without
giving any indication of its reasons for doing so.” United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Here,
the district court failed to offer any explanation at all for
imposing a twelve-month sentence. We have held that this
constitutes plain error. Thompson, 595 F.3d at 548.
Additionally, the record does not include any calculation of the
applicable advisory Guidelines range, which prevents our review
of whether the error affected Tossie’s substantial rights.
Accordingly, we vacate Tossie’s sentence and remand for
resentencing in accordance with this opinion. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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