United States v. Leonidas Brown, Jr. , 675 F. App'x 370 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4446
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONIDAS BROWN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:06-cr-00213-JRS-2)
Submitted: January 26, 2017 Decided: February 3, 2017
Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Frances H. Pratt,
Laura J. Koenig, Assistant Federal Public Defenders, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Peter S. Duffey, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonidas Brown, Jr., appeals the 24-month sentence imposed
upon revocation of his supervised release. For the reasons that
follow, we vacate and remand for resentencing.
Brown pled guilty in 2006 to conspiracy to distribute crack
cocaine and was sentenced to 20 years’ imprisonment, followed by
five years of supervised release. Brown’s sentence was later
reduced and he was released on September 22, 2014. In May 2016,
a petition to revoke Brown’s supervised release was filed
alleging numerous violations of conditions of supervision.
At the revocation hearing, Brown admitted the violations
and pled guilty. Counsel detailed Brown’s long history of
mental health issues and previous attempts to comply with drug
counseling programs. Counsel stated that she had identified an
appropriate long-term program to treat Brown’s mental health and
drug abuse problems, and requested that the court impose a
sentence of time served — eight weeks. Government counsel
argued that Brown failed to abide by the terms of his supervised
release for two years, and that “the pattern here is one of just
a complete failure to do anything to take advantage of the
resources” available to Brown. Government counsel went on to
note that “the guidelines are six to 12 months . . . [t]here is
a statutory maximum of 60 months.”
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At the conclusion of the hearing, the district court made
the following findings:
Well, it is a difficult and complicated process.
I have to look at all the facts, and the facts here
indicate to me that whatever the particular kind of
help that Mr. Brown needs we have been unable to
provide in the two years that he has been on
supervised release.
The tools that we have, and drug treatment and
mental health treatment and the constant monitoring to
impose discipline upon an undisciplined life has
obviously not worked. So the prospect of a continued
supervised release after a two-year failure at every
turn does not argue well for continued supervised
release. It is just that simple.
This is what I am going to do. I am going to
impose a sentence of active incarceration of 24
months. He will receive credit for time served. No
further supervised release following this period of
incarceration.
The court did not refer to the Guidelines Manual policy
statement and table suggesting a sentence of six to 12 months,
and the record does not include a worksheet calculating the
applicable policy statement range.
We will affirm a sentence imposed after revocation of
supervised release unless that sentence is plainly unreasonable.
See United States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006).
Brown maintains that the sentence he received is plainly
procedurally unreasonable because the court failed to consider
the applicable policy statement range. A district court “need
not be as detailed or specific when imposing a revocation
sentence as it must be when imposing a post-conviction
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sentence.” United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010). But it “must consider the policy statements
contained in Chapter 7, including the policy statement range, as
‘helpful assistance,’ and must also consider the applicable
§ 3553(a) factors.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (emphasis added); see also Thompson, 595 F.3d at
547.
Here, the district court may well have (at least
implicitly) considered many of the applicable § 3553(a) factors.
But it failed to indicate any consideration of the policy
statement range for revocation sentences. The Government argues
that the court was aware of the policy statement range because
Government counsel mentioned it in his argument for a sentence
within the range. However, the record contains no worksheet or
concession by Brown’s counsel that the Government’s statement
was correct. Moreover, nothing in the hearing transcript
demonstrates, or implies, that the court considered the six to
12-month policy statement range during sentencing. Therefore,
we conclude that Brown’s sentence was procedurally unreasonable.
“For a sentence to be plainly unreasonable, . . . it must
run afoul of clearly settled law.” Thompson, 595 F.3d at 548.
In this case, the requirement that a sentencing court must
consider the Chapter 7 policy statement range is clearly
settled. See Moulden, 478 F.3d at 656. Because Brown’s
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sentence violated Moulden’s clear language, it was plainly
unreasonable.
For the foregoing reasons, we vacate Brown’s sentence and
remand to the district court 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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