United States v. Gordon Blake ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GORDON BLAKE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. Frank W. Volk, District Judge. (5:19-cr-00025-1)
Submitted: November 20, 2020 Decided: January 21, 2021
Before AGEE, HARRIS, and RICHARDSON, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public
Defender, David R. Bungard, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B.
Stuart, United States Attorney, Jennifer Rada Herrald, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gordon Blake appeals the sentence of 168 months’ imprisonment and 20 years’
supervised release imposed following his guilty plea to possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). On appeal, Blake raises three
challenges to the procedural reasonableness of his term of imprisonment and supervised
release conditions. We affirm in part, vacate in part, and remand for resentencing.
I.
Generally, we review a sentence for reasonableness, applying “a deferential abuse-
of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We first evaluate
the sentence for significant procedural error, such as improperly calculating the Sentencing
Guidelines range, inadequately considering the § 3553(a) factors, or insufficiently
explaining the chosen sentence. United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020),
cert. denied, No. 20-5825, 2020 WL 6385951 (U.S. Nov. 2, 2020). In assessing Guidelines
calculations, we review factual findings for clear error and legal conclusions de novo.
United States v. Hawley, 919 F.3d 252, 255 (4th Cir. 2019). Only if the sentence is
procedurally reasonable may we consider whether it is substantively reasonable. United
States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019).
II.
Blake first asserts that the district court clearly erred in refusing to sua sponte award
him an additional one-level reduction for acceptance of responsibility under U.S.
Sentencing Guidelines Manual § 3E1.1(b) (2018), because the Government arbitrarily
declined to move for the reduction after his timely plea. A defendant is entitled to a two-
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level reduction if he “clearly demonstrates acceptance of responsibility for his offense.”
USSG § 3E1.1(a). If the defendant qualifies for this reduction and has an offense level of
16 or greater, the Guidelines authorize an additional one-level reduction
upon motion of the [G]overnment stating that the defendant has assisted
authorities in the investigation or prosecution of his own misconduct by
timely notifying authorities of his intention to enter a plea of guilty, thereby
permitting the [G]overment to avoid preparing for trial and permitting the
[G]overnment and the court to allocate their resources effectively[.]
USSG § 3E1.1(b). “In general, the conduct qualifying for a decrease in offense level under
subsection (b) will occur particularly early in the case.” USSG § 3E1.1 cmt. n.6.
The Government “retains discretion to determine whether the defendant’s assistance
has relieved it of preparing for trial,” because “the Government is in the best position” to
make that determination. United States v. Divens, 650 F.3d 343, 346 (4th Cir. 2011)
(emphasis omitted). The Government therefore may “refuse to move for an additional one-
level reduction, but only on the basis of an interest recognized by the [G]uideline itself.”
Id. at 347. The district court may compel the Government to move for the additional
reduction if the Government has withheld such a motion on improper grounds. Id. at 350.
Here, Blake pled guilty only four days before his trial was scheduled to begin.
While Blake asserts that he was forced to enter a belated plea in light of circumstances
beyond his control, Blake’s rationale for his belated plea did not render the Government’s
refusal to seek a USSG § 3E1.1(b) reduction arbitrary or unfounded. Instead, its decision
was based on the substantial trial preparation it had to undertake prior to Blake’s plea—
preparations supported by the undisputed record and unsurprising given the proximity to
the scheduled trial date. Contrary to Blake’s assertion, we find nothing in the
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Government’s other arguments opposing the one-level reduction during sentencing to
undermine its clear and justified rationale. Because the Government based its decision on
an interest directly recognized by USSG § 3E1.1(b), we conclude that the district court
properly declined to compel the Government to seek the additional one-level reduction.
III.
Blake next contends that the district court erred by failing to address his numerous
mitigation arguments when explaining the basis for his sentence of imprisonment. In
announcing a sentence, the court “must make an individualized assessment based on the
facts presented and must state in open court the particular reasons supporting its chosen
sentence.” Provance, 944 F.3d at 218 (internal quotation marks omitted). The court must
“address the parties’ nonfrivolous arguments in favor of a particular sentence, and if the
court rejects those arguments, it must explain why in a sufficiently detailed manner to allow
[us] to conduct a meaningful appellate review.” United States v. Blue, 877 F.3d 513, 519
(4th Cir. 2017). “The adequacy of the sentencing court’s explanation depends on the
complexity of each case[,] and the appropriateness of brevity or length, conciseness or
detail, when to write, what to say, depends upon the circumstances.” United States v.
Arbaugh, 951 F.3d 167, 174 (4th Cir. 2020) (alterations and internal quotation marks
omitted), cert. denied, No. 20-5026, 2020 WL 5883437 (U.S. Oct. 5, 2020).
“[A] talismanic recitation of the § 3553(a) factors without application to the
defendant being sentenced does not demonstrate reasoned decisionmaking or provide an
adequate basis for appellate review.” United States v. Carter, 564 F.3d 325, 329 (4th Cir.
2009). “[W]here the district court could have made precisely the same statements in
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support of a different sentence, we have found the explanation to be inadequate and have
remanded for resentencing.” Blue, 877 F.3d at 519 (internal quotation marks omitted).
Ultimately, the court must “set forth enough to satisfy the appellate court that it has
considered the parties’ arguments and has a reasoned basis for exercising its own legal
decisionmaking authority.” United States v. Lozano, 962 F.3d 773, 782 (4th Cir. 2020)
(alterations and internal quotation marks omitted).
“It is sometimes possible to discern a sentencing court’s rationale when an
explanation is lacking.” United States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020)
(alteration and internal quotation marks omitted). We therefore will not vacate a sentence
where “[t]he context surrounding a district court’s explanation . . . imbue[s] 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). Yet, we “may not guess at the district court’s rationale, searching the record for
statements by the Government or defense counsel or for any other clues that might explain
a sentence.” United States v. Ross, 912 F.3d 740, 745 (4th Cir.), cert. denied, 140 S. Ct.
206 (2019) (citations and internal quotation marks omitted). Nor may we “assume that the
court has silently adopted arguments presented by a party,” Nance, 957 F.3d at 214
(internal quotation marks omitted), or “assume that a sentencing court truly considered a
defendant’s nonfrivolous arguments or individual characteristics when the record fails to
make it patently obvious,” Blue, 877 F.3d at 521 (internal quotation marks omitted).
Where the district court addresses the defendant’s “central thesis” in mitigation, it
need not “address separately each supporting data point marshalled on its behalf.” Nance,
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957 F.3d at 214. Nonetheless, the court’s failure to give “specific attention” to
nonfrivolous arguments produces a procedurally unreasonable sentence. Lewis, 958 F.3d
at 245 (internal quotation marks omitted). “At bottom, [we] cannot substitute our
assessment of the record for the district court’s obligation to explain its rationale in the first
instance.” Id. at 244 (internal quotation marks omitted).
As Blake observes, the district court did not explicitly acknowledge or discuss his
numerous arguments in favor of a downward variance, including: (1) his assertion that the
severity of his offense fell at the lower end of the spectrum of child pornography offenders;
(2) his military service; (3) his medical history; (4) the significant collateral consequences
he faced from his conviction; and (5) his policy dispute with the child pornography
Guidelines. While the court generally recited the § 3553(a) factors, its statements did not
demonstrate consideration of Blake’s arguments and could have supported any number of
permissible sentences. See Blue, 877 F.3d at 519; Carter, 564 F.3d at 329.
We conclude that the district court’s findings regarding the nature and
circumstances of Blake’s offense demonstrated its rejection of Blake’s “central thesis”
about the severity of his crime. See Nance, 957 F.3d at 214. Though more clarity was
possible, the court’s explanation adequately addressed this aspect of Blake’s argument. As
the Government observes, the Guidelines generally account for such distinctions in
criminal culpability, and the mere fact that Blake did not commit a more severe crime does
not, standing alone, mitigate the offense he in fact committed. Cf. United States v. Borho,
485 F.3d 904, 911 (6th Cir. 2007) (“[B]oth the Guidelines and the underlying statutes
clearly distinguish between one who views pornography in private and one who engages
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in interactive behavior.”). Thus, we conclude that the court’s findings rendered it “patently
obvious” that the court believed Blake was not among the least culpable of child
pornography offenders. See Blue, 877 F3.d at 521 (internal quotation marks omitted).
With respect to Blake’s remaining arguments, however, we find the district court’s
explanation lacking. Nothing in the court’s statements at sentencing demonstrated its
meaningful consideration of Blake’s arguments regarding his military service and medical
history, his dispute with the Guidelines, or his contention that the collateral consequences
of his offense could serve, in his particular circumstances, to offset the need for lengthy
imprisonment.
The Government asserts that the court was not required to address these arguments
because they were too ambiguous, frivolous, or general to warrant the court’s specific
attention. We have thoroughly reviewed the parties’ submissions, however, and are
unpersuaded by the Government’s arguments on these issues.
We need not vacate Blake’s sentence if the Government establishes that the court’s
omissions were harmless. See United States v. Boulware, 604 F.3d 832, 838 (4th Cir.
2010). “To establish harmless error, the [G]overnment bears the burden of demonstrating
that the district court’s explicit consideration of the defendant’s arguments would not have
affected the sentence imposed.” Lewis, 958 F.3d at 245 (alteration and internal quotation
marks omitted). We conclude that the Government has not satisfied this burden and
resentencing is required.
IV.
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Finally, Blake asserts that the district court abused its discretion in imposing a
supervised release condition requiring him to submit to warrantless searches of his home,
person, and property by the probation officer upon reasonable suspicion that he has violated
a condition of supervised release (the “warrantless search condition”). He argues that this
condition produces a greater deprivation of liberty than necessary and is not reasonably
related to his conviction, history, or characteristics.
District courts enjoy “broad latitude” in crafting special conditions of supervised
release, and we “review the court’s decision to impose a condition of supervised release
for an abuse of discretion.” United States v. Holman, 532 F.3d 284, 288 (4th Cir. 2008)
(internal quotation marks omitted). A district court can impose a discretionary supervised
release condition if it is “reasonably related” to various enumerated sentencing factors.
18 U.S.C. § 3583(d)(1); see 18 U.S.C. § 3553(a)(1), (2)(B), (C), (D). The condition also
must “involve[] no greater deprivation of liberty than is reasonably necessary,” 18 U.S.C.
§ 3583(d)(2), and be “consistent with any pertinent policy statements issued by the
Sentencing Commission,” 18 U.S.C. § 3583(d)(3). The sentencing court must make the
§ 3583(d) inquiry “on an individualized basis,” rather than imposing a condition on broad
categories of offenders. United States v. Bender, 566 F.3d 748, 752 (8th Cir. 2009)
(internal quotation marks omitted); see United States v. Voelker, 489 F.3d 139, 144 (3d
Cir. 2007).
Blake does not dispute, and the record supports, that the warrantless search
condition is consistent with the Sentencing Commission’s policy statements and the
supervised release statute, which recommend even broader warrantless search conditions
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for sex offenders. See 18 U.S.C. § 3583(d); USSG § 5B1.3(d)(7)(C). The facts found by
the district court regarding Blake’s offense refute his assertions that the warrantless search
condition is not reasonably related to his offense and history and produces an unnecessary
deprivation of liberty. Instead, the condition reasonably closes gaps in the probation
officer’s authority to ensure Blake does not recidivate, while tempering the probation
officer’s discretion by limiting permissible searches to those conducted in a reasonable
time and manner and on reasonable suspicion of a supervised release violation. We
therefore find no abuse of discretion in the district court’s decision to impose the
warrantless search condition.
V.
Accordingly, we affirm the district court’s judgment in part, insofar as Blake
challenges the extent of his USSG § 3E1.1 reduction and the warrantless search condition.
We vacate the district court’s judgment in part, insofar as Blake challenges the district
court’s explanation of his 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.
AFFIRMED IN PART,
VACATED IN PART,
REMANDED
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