United States v. Brian Redwine

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4440
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN REDWINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:03-cr-00394-JRS-28)
Submitted: November 8, 2012 Decided: November 15, 2012
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, Patrick L. Bryant,
Appellate Attorney, Alexandria, Virginia, for Appellant. Neil
H. MacBride, United States Attorney, Roderick C. Young,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2004, Brian Redwine pleaded guilty to conspiracy to
possess with intent to distribute and distribute cocaine, in
violation of 21 U.S.C. § 846 (2006), and the district court
sentenced Redwine to 151 months of imprisonment followed by
three years of supervised release. Based on the Government’s
motion for a sentence reduction for substantial assistance, and
Redwine’s 18 U.S.C. § 3582(c)(2) (2006) motion, the court
subsequently reduced Redwine’s sentence to sixty-five months of
imprisonment. In 2009, Redwine pleaded guilty to violating the
terms of his supervised release and the district court sentenced
him to forty-eight months of imprisonment followed by twelve
months of supervised release. In May 2012, Redwine again
pleaded guilty to violating the terms of his supervised release
and the district court sentenced Redwine to twelve months of
imprisonment. Redwine now appeals, arguing that the second
revocation sentence is plainly unreasonable.
This court reviews a sentence imposed as a result of a
supervised release violation to determine whether the sentence
is plainly unreasonable. United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006). The first step in this analysis is a
determination of whether the sentence is unreasonable. Id. at
438. This court, in determining reasonableness, follows
generally the procedural and substantive considerations employed
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in reviewing original sentences. Id. If a sentence imposed
after a revocation is not unreasonable, we will not proceed to
the second prong of the analysis—whether the sentence is plainly
unreasonable. Crudup, 461 F.3d at 438-39.
In sentencing a defendant upon a finding of a
supervised release violation, the district court must provide a
statement of reasons for the sentence imposed; this statement,
however, “need not be as detailed or specific” as that required
for an original sentence. See United States v. Thompson, 595
F.3d 544, 547 (4th Cir. 2010) (citation omitted). We review the
adequacy of the district court’s explanation for the sentence
for abuse of discretion. See United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010). If the district court abused its
discretion, we will “reverse unless we conclude that the error
was harmless.” Id. at 576. The government bears the burden of
demonstrating that any error committed by the district court was
harmless. Id. at 585.
We have thoroughly reviewed the record and conclude
that the district court erred in sentencing Redwine. The court
failed to provide any explanation for the sentence of the
statutory maximum term and failed to acknowledge Redwine’s
non-frivolous arguments for leniency. We further conclude that
the Government has failed to demonstrate that this error was
harmless as the district court could have reasonably imposed a
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lower sentence had it explicitly considered Redwine’s sentencing
arguments. See Thompson, 595 F.3d at 548. Therefore, we find
that the sentence is procedurally plainly unreasonable.
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 in
the decisional process.
VACATED AND REMANDED
*
We emphasize that, by the disposition, we indicate no view
as to the substantive reasonableness of the twelve—month
sentence imposed by the district court. Accordingly, on remand
the district court is free to impose the same sentence or a
different sentence, as it deems appropriate.
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