United States v. Lacresha Slappy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4010
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LACRESHA JANELLE SLAPPY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Fox, Senior District Judge. (7:06-cr-00050-F-3)
Argued: May 10, 2017 Decided: September 22, 2017
Before GREGORY, Chief Judge, and SHEDD and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge Gregory wrote the majority
opinion, in which Judge Wynn joined. Judge Shedd wrote a dissenting opinion.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Donald Russell Pender, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United
States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
GREGORY, Chief Judge:
Defendant-Appellant Lacresha Janelle Slappy appeals her thirty-six month
sentence, which the district court imposed after revoking Slappy’s term of supervised
release. Slappy argues that her revocation sentence is plainly unreasonable because the
district court failed to address her nonfrivolous arguments in favor of a within-range
sentence or to sufficiently explain why it imposed the statutory maximum sentence. We
agree, and for the reasons that follow, we vacate Slappy’s revocation sentence and
remand for resentencing.
I.
In 2006, Slappy pleaded guilty to armed bank robbery and aiding and abetting, in
violation of 18 U.S.C. § 2113(a) and (d) and § 2. On July 18, 2007, the district court
sentenced Slappy to 107 months of imprisonment, followed by five years of supervised
release, as well as $16,192 in restitution. Slappy served her term of imprisonment, and
on September 30, 2014, she began serving her term of supervised release.
In February 2015, Slappy’s probation officer filed a Petition for Action on
Supervised Release, which stated that Slappy had violated the terms of her supervised
release by submitting urine screens that on two occasions tested positive for the use of
cocaine. J.A. 21. According to the Petition, Slappy stated that she was having a hard
time adjusting to her release from prison and bonding with her children. J.A. 21. She
was otherwise in compliance with the terms of her release by participating in a Relapse
Prevention Group, seeing a therapist weekly to address substance abuse and mental
2
health issues, and making regular payments on her restitution. J.A. 21, 29. The district
court ordered Slappy to serve a weekend in prison and participate in a cognitive behavior
program.
On October 27, 2015, Slappy’s probation officer submitted an Amended Motion
for Revocation on Offender Under Term of Supervised Release, alleging that Slappy
committed the following violations: (1) engaged in criminal conduct (arrested for theft of
a pair of shoes from a Nordstrom in Baltimore County, Maryland, and released on bond);
(2) failed to report for seven urine screens; (3) used a controlled substance (marijuana);
(4) left the judicial district without permission (based on Maryland theft charge); and (5)
absconded from supervision (probation officer could not reach Slappy by phone or at her
residence for three weeks). J.A. 23–24.
At the revocation hearing, Slappy did not contest violations one, two, or five, and
admitted violations three and four. J.A. 27. Although the Government began to proffer
evidence of all five alleged violations, the court stated, “I’m not going to find that she’s
violated but 3 and 4.” J.A. 29. The parties agreed that violations three and four were
both Grade C violations with a recommended sentence of seven to thirteen months of
imprisonment under the Sentencing Guidelines’ Chapter Seven policy statements, and
that the statutory maximum sentence was thirty-six months of imprisonment. J.A. 29, 32;
see also U.S. Sentencing Guidelines Manual § 7B1.4(a) (U.S. Sentencing Comm’n
2015).
Slappy requested a revocation sentence of thirteen months of imprisonment,
followed by termination of her supervised release, based on her post-incarceration
3
conduct and attempts at rehabilitation. J.A. 29–31. As she explained at the revocation
hearing, following her release from custody on her 107-month sentence, she resided in a
halfway house and worked at a fast food restaurant. J.A. 30. She also participated in
New Hanover’s Scared Straight program, which allowed her to share her experiences
with the youths in the program. J.A. 30. According to Slappy’s counsel, the director of
the program said Slappy was quite effective, and that he gave her a lot of autonomy and
would bring her the “hardened youth . . . because she seems to be able to get through to
them.” J.A. 30. And a local news station interviewed Slappy for a documentary on
prostitution and female drug users. J.A. 30. All of this, her counsel argued, helped
Slappy gain “a lot of insight” and “start[] to look over her own life to figure out what
[she] can do better,” and that ultimately, “the fact that she’s contributing to society in this
way certainly shows us that she has.” J.A. 30–31. Slappy addressed the court and
explained that she had only left Wilmington because she felt she was in some danger, and
that when she tried to explain that to her probation officer, she was not taken seriously.
She said she otherwise would not have left, because she “was doing good.” J.A. 31.
The Government asked the court to impose the statutory maximum sentence of
thirty-six months of imprisonment. The Government recounted Slappy’s criminal
history, including three convictions for assault, one conviction for communicating a
threat, a “resist, delay, and obstruct” conviction, and one conviction for raising a false fire
alarm after she pulled a prison fire alarm and activated the sprinkler system. J.A. 32.
The Government also recounted at length the conduct underlying her bank robbery
conviction, for which Slappy was then serving the term of supervised release.
4
The Government further noted that when this bank robbery occurred, Slappy
already had thirteen state convictions, had violated her probation five times, and had
committed some of her crimes while out on bond for prior charges. And, the
Government added, the five violations at issue all occurred less than a year after her
release from her 107-month sentence on the bank robbery conviction. J.A. 33. The
Government argued that “[b]ased on [Slappy’s] history and characteristics,” as well as
“the need to protect the public from any further crimes of the defendant, and the need to
promote the respect for the law,” the statutory maximum was “the only sentence that’s
sufficient, but not greater than necessary.” J.A. 34.
Slappy’s counsel argued that Slappy had already been punished for her role in the
bank robbery. Her counsel requested that the court consider only the currently alleged
violations, which were “nowhere near any of the priors” that the Government had
described. J.A. 34–35. Slappy herself reiterated that she had made significant attempts
to try and help society through her involvement in community programs and asked that
the court consider that in imposing a revocation sentence. J.A. 35–36.
Without addressing these arguments, the district court then sentenced Slappy to
the statutory maximum of thirty-six months of imprisonment, stating only that
[t]he Court finds as a fact that the defendant has violated the terms of the
conditions of the judgment by using a controlled substance, by leaving the
judicial district without permission of The Court or Probation Officer. The
Court has considered policy statements contained in Chapter 7 of the
United States Sentencing Guidelines as well as the relevant factors listed in
18-USC-Section 3553(a) and weighed all these factors. Therefore, it is the
Order of The Judge that the supervision (inaudible) granted be revoked.
This defendant is ordered committed to the custody of the Bureau of
Prisons for a period of 36 months. This sentence is imposed to afford
5
adequate deterrence to criminal conduct imposed to the law rather than the
defendant’s use of (inaudible) is a threat to society. It’s further ordered that
the (inaudible). Ms. Slappy was released from the Bureau of Prisons on
September 30, 2014, at which time her supervised release commenced.
Since her release, she has submitted four positive drug screens for use of
illegal drugs, failure to participate in a urinalysis as directed, incurred new
criminal charges, and absconded from supervision. It is evidenced by her
behavior that she doesn’t respect The Court, and supervision based on a
non-compliant behavior. This sentence is imposed.
J.A. 36–37.
Slappy timely appealed her revocation sentence.
II.
A district court has broad, though not unlimited, discretion in fashioning a
sentence upon revocation of a defendant’s term of supervised release. United States v.
Webb, 738 F.3d 638, 640 (4th Cir. 2013); United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010). Accordingly, when this Court examines a revocation sentence, we
“take[] a more ‘deferential appellate posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for guidelines sentences.” United States v.
Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d
433, 439 (4th Cir. 2006)). “We will affirm a revocation sentence if it is within the
statutory maximum and is not ‘plainly unreasonable.’” Webb, 738 F.3d at 640 (quoting
Crudup, 461 F.3d at 438). And even if a revocation sentence is plainly unreasonable, we
will still affirm it if we find that any errors are harmless. See Thompson, 595 F.3d at 548.
To consider whether a revocation sentence is plainly unreasonable, we first must
determine whether the sentence is procedurally or substantively unreasonable. Id. at 546.
6
In making this determination, “we follow generally the procedural and substantive
considerations that we employ in our review of original sentences, . . . with some
necessary modifications to take into account the unique nature of supervised release
revocation sentences.” Crudup, 461 F.3d at 438–39. A revocation sentence is
procedurally reasonable if the district court adequately explains the chosen sentence after
considering the Sentencing Guidelines’ nonbinding Chapter Seven policy statements 1 and
the applicable 18 U.S.C. § 3553(a) factors. 2 Thompson, 595 F.3d at 546–47. And a
revocation sentence is substantively reasonable if the court “sufficiently state[s] a proper
basis for its conclusion that” the defendant should receive the sentence imposed. Crudup,
461 F.3d at 440.
As we have held in the context of original sentences, “‘[w]here the defendant or
prosecutor presents nonfrivolous reasons for imposing a different sentence’ than that set
1
These statements instruct, among other things, that when imposing a revocation
sentence, “the court should sanction primarily the defendant’s breach of trust, while
taking into account, to a limited degree, the seriousness of the underlying violation and
the criminal history of the violator.” U.S. Sentencing Guidelines Manual ch. 7, pt.
A(3)(b) (2015).
2
These include (1) “the nature and circumstances of the offense and the history
and characteristics of the defendant;” (2) “the need for the sentence imposed . . . to afford
adequate deterrence to criminal conduct,” “to protect the public from further crimes of
the defendant,” and “to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner;” (3)
the sentencing range established by the Guidelines; (4) the Sentencing Commission’s
pertinent policy statements; (5) “the need to avoid unwarranted sentencing disparities
among defendants with similar records who have been found guilty of similar conduct;
and” (6) “the need to provide restitution to any victims of the offense.” 18 U.S.C.
§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7); see also 18
U.S.C. § 3583(e) (listing applicable § 3553(a) factors).
7
forth in the advisory Guidelines, 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) (quoting Rita v. United States, 551 U.S. 338, 357 (2007)). If the
court determines that a sentence outside the advisory range is appropriate, it is
“uncontroversial that a major departure should be supported by a more significant
justification than a minor one.” Gall v. United States, 552 U.S. 38, 50 (2007). The
requirements that a district court meaningfully respond to the parties’ nonfrivolous
arguments and sufficiently explain the chosen sentence are intended “to allow for
meaningful appellate review and to promote the perception of fair sentencing.” Id. And
although the “court need not be as detailed or specific when imposing a revocation
sentence as it must be when imposing a post-conviction sentence, . . . it still ‘must
provide a statement of reasons for the sentence imposed.’” Thompson, 595 F.3d at 547
(quoting Moulden, 478 F.3d at 657).
Only if we find a revocation sentence unreasonable do we consider “whether it is
‘plainly’ so, ‘relying on the definition of “plain” [used] in our “plain” error analysis’—
that is, ‘clear’ or ‘obvious.’” Moulden, 478 F.3d at 657 (quoting Crudup, 461 F.3d at
439). If a revocation sentence—even an unreasonable one—is not “plainly
unreasonable,” we will affirm it.
Slappy contends that her revocation sentence is procedurally unreasonable because
the district court failed to address her nonfrivolous arguments in favor of a sentence
within the policy statement range or to sufficiently explain why it was upwardly
departing from the policy statement range and imposing the statutory maximum sentence.
8
Appellant’s Br. 14–16. The Government counters that the court provided a sufficient
explanation, based on all the relevant factors, for imposing the maximum sentence, and
that it was not required to address Slappy’s mitigating evidence if it “was simply not
convinced that a lower sentence was appropriate.” Appellee’s Br. 17.
We agree with Slappy that the district court’s failure to address her arguments in
favor of a within-policy-statement-range sentence constitutes procedural error. Slappy
presented detailed, nonfrivolous evidence of her positive employment history, her efforts
at rehabilitation, and her voluntary service to her community, and the court did not so
much as mention her arguments when it imposed the statutory maximum. This Court in
Carter, relying on the Supreme Court’s holding in Rita, made clear that when imposing
an original sentence, the district court must address these types of arguments, and if it
rejects them, it must explain why. Carter, 564 F.3d at 328 (citing Rita, 551 U.S. at 357).
It is true that both Rita and Carter dealt with original sentences under the Guidelines,
rather than revocation sentences under the Guidelines’ advisory policy statements. But as
we previously stated, we generally apply the same principles to original and revocation
sentences, Crudup, 461 F.3d at 438–39, and what is more, both the Guidelines
themselves and their policy statements are advisory. We therefore find these cases’
reasoning instructive in determining the reasonability of a revocation sentence.
Accordingly, we apply Carter here and hold that a district court, when imposing a
revocation sentence, 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
detailed-enough manner that this Court can meaningfully consider the procedural
9
reasonableness of the revocation sentence imposed. 3 We continue to recognize that a
court’s statement of reasons for imposing a revocation sentence “‘need not be as specific
as has been required’ for departing from a traditional guidelines range.” Moulden, 478
F.3d at 657 (quoting Crudup, 461 F.3d at 439). But where a court entirely fails to
mention a party’s nonfrivolous arguments in favor of a particular sentence, or where the
court fails to provide at least some reason why those arguments are unpersuasive, even
the relaxed requirements for revocation sentences are not satisfied.
3
Our holding is aligned with the practice of several of our sister circuits. See, e.g.,
United States v. Thornhill, 759 F.3d 299, 311 (3d Cir. 2014) (“[A] court may not . . .
ignore a colorable argument raised by a party [at a revocation hearing] if it concerns the
applicability of one [of] the § 3553(a) factors.”); United States v. Whitelaw, 580 F.3d
256, 261–62 (5th Cir. 2009) (recognizing in the revocation context Rita’s requirement
that the court address nonfrivolous arguments for imposing a different sentence); United
States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (holding, in the context of a revocation
sentence, that “[t]he district court must provide a clear explanation of why it has either
accepted or rejected the parties’ arguments and thereby chosen the particular sentence
imposed, regardless of whether it is within or outside of the Guidelines”). It is also
consistent with our approach in numerous nonbinding, unpublished decisions. See, e.g.,
United States v. Mattocks, No. 15-4683, 2017 WL 715819, at *1 (4th Cir. Feb. 23, 2017)
(finding a revocation sentence procedurally unreasonable where “the district court failed
to address [defendant’s] nonfrivolous argument that a lower sentence was warranted”);
United States v. Tate, 582 F. App’x 173, 175 (4th Cir. 2014) (finding revocation sentence
procedurally unreasonable based on “the court’s omission of any explanation for its
chosen sentence”); United States v. Chaimowitz, 554 F. App’x 135, 138 (4th Cir. 2014)
(finding revocation sentence procedurally unreasonable where court’s “statements were
plainly inadequate to demonstrate its meaningful consideration of [defendant’s]
nonfrivolous sentencing arguments”); United States v. Fisher, 514 F. App’x 324, 329 (4th
Cir. 2013) (finding revocation sentence “procedurally unreasonable because the district
court failed to address any of [defendant]’s specific arguments raised at the . . .
revocation hearing”); see also Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th
Cir. 2006) (noting that unpublished decisions “have no precedential value,” and adding
that “they are ‘entitled only to the weight they generate by the persuasiveness of their
reasoning’” (citing Hupman v. Cook, 640 F.2d 497, 501 & n.7 (4th Cir. 1981))).
10
What is more, the court’s failure to address Slappy’s nonfrivolous arguments in
favor of a within-range sentence was compounded by its failure to explain why it was
necessary to impose the statutory maximum sentence. As we have previously stated,
“For a sentence to be procedurally sound, a district judge must also consider the factors
outlined in 18 U.S.C. § 3553(a) and ‘articulate the reasons for selecting the particular
sentence, especially explaining why [any] sentence outside of the Sentencing Guideline
range better serves the relevant sentencing purposes set forth in § 3553(a).’” United
States v. Helton, 782 F.3d 148, 151–52 (4th Cir. 2015) (quoting United States v. Green,
436 F.3d 449, 456 (4th Cir. 2006)). The court here did state that Slappy’s sentence was
“imposed to afford adequate deterrence to criminal conduct,” and that it was based on
“evidence[] . . . that she doesn’t respect The Court.” J.A. 36–37. 4 But at no point did the
court mention the policy statements’ advisory range of seven to thirteen months of
imprisonment, nor did it explain why it was imposing the statutory maximum, rather than
some other sentence. Indeed, from this record, it is not clear that the court even
considered the relevant advisory range; prior to imposing the sentence, the court’s only
remark regarding a potential revocation sentence was to ask the Government, “You’re
asking for 36 months?” J.A. 35.
4
In support of this conclusion, the court pointed to all five of Slappy’s alleged
violations of her supervised release. J.A. 36. But at the start of the hearing, the court
said that it would only find that she had committed two of the alleged violations—use of
a controlled substance and leaving the district without permission. J.A. 29. The parties
do not argue, nor do we consider, the legal significance of this apparent mistake—suffice
it to note that it rendered an already procedurally flawed hearing even more problematic.
11
Because the court failed to address Slappy’s nonfrivolous arguments in favor of a
within-range sentence or to explain why the statutory maximum sentence was necessary,
we find that Slappy’s revocation sentence is procedurally unreasonable. We therefore
must determine whether Slappy’s sentence is plainly unreasonable, meaning that it
“run[s] afoul of clearly settled law.” Thompson, 595 F.3d at 548. This Court has
unequivocally held that “the district court’s obligation to provide some basis for appellate
review when imposing a revocation sentence, however minimal that basis may be, has
been settled in this Circuit since at least Moulden.” Id. And in Moulden, we said that
“[t]h[e] explanation [for the sentence imposed] should . . . provide us an assurance that
the sentencing court considered the § 3553(a) factors with regard to the particular
defendant . . . and also considered any potentially meritorious arguments raised by the
parties with regard to sentencing.” 478 F.3d at 657; see also Thompson, 595 F.3d at 547.
These cases clearly establish that while the district court need not be as detailed in
imposing a revocation sentence, it still must provide enough of an explanation to assure
this Court that it considered the parties’ arguments and had some basis for choosing the
imposed sentence. Here, the district court’s failure to so much as mention Slappy’s
arguments or provide any explanation for why it was necessary to depart from the policy
statement range and impose the maximum sentence contravened this Circuit’s well-
settled precedent. We hold, therefore, that Slappy’s sentence is plainly unreasonable.
We further hold that the district court’s procedural errors are not harmless. The
Government has not even raised this argument, much less met its burden of proving that
these errors “‘did not have a “substantial and injurious effect or influence”’ on the
12
result.” United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010) (quoting United States
v. Curbelo, 343 F.3d 273, 278 (4th Cir. 2003)). The record indicates that the court
neither considered Slappy’s arguments in favor of a within-range sentence nor
contemplated imposing anything other than the statutory maximum sentence. Had it
done so, it is certainly plausible that it might have imposed a lower revocation sentence.
See id; see also Thompson, 595 F.3d at 548.
Lastly, because we find that Slappy’s sentence is plainly procedurally
unreasonable and that the district court’s errors are not harmless, we need not consider
whether her sentence is substantively reasonable. Carter, 564 F.3d at 330 n.4 (“Having
found the sentence procedurally unreasonable, . . . we cannot review the sentence for
substantive reasonableness.”); see also United States v. Stephens, 549 F.3d 459, 465 (6th
Cir. 2008) (“If, and only if, the district court’s sentencing decision is procedurally sound,
we will ‘then consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard[,] . . . tak[ing] into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.’” (quoting Gall, 552 U.S.
at 51)). Here, the district court’s procedural errors are alone grounds for resentencing.
III.
For these reasons, we vacate Slappy’s revocation sentence and remand for
resentencing.
VACATED AND REMANDED
13
SHEDD, Circuit Judge, dissenting:
The majority holds that Lacresha Slappy’s sentence is plainly procedurally
unreasonable for two reasons: the district court failed to address Slappy’s arguments in
favor of a within-range sentence and failed to explain why the maximum sentence was
necessary. Because I disagree with both conclusions, I would affirm. 1
I.
The district court has broad discretion to impose a term of imprisonment for
violation of supervised release up to the statutory maximum, and we may only reverse a
supervised release revocation sentence if we find the sentence to be “plainly
unreasonable.” United States v. Crudup, 461 F.3d 433, 438, 439 (4th Cir. 2006). 2 In
determining whether a revocation sentence is plainly unreasonable, we must first decide
whether the sentence is unreasonable at all. Id. at 438. While we generally follow the
considerations that we employ in our review of original sentences, we make necessary
modifications to take into account the unique nature of revocation sentences. Id. at 438–
39. For example, “a court’s statement of its reasons for going beyond non-binding policy
statements in imposing a sentence after revoking a defendant’s supervised release term
need not be as specific as has been required when courts departed from guidelines.” Id. at
439.
1
While I believe the revocation sentence is also substantively reasonable, I do not
address this issue because the majority has not ruled on substantive reasonableness.
2
I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
14
To be procedurally reasonable, the district court must “provide a sufficient
explanation so that we may effectively review the reasonableness of the sentence.”
United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007). Further, the “explanation
should also provide us an assurance that the sentencing court considered the § 3553(a)
factors with regard to the particular defendant before him, and also considered any
potentially meritorious arguments raised by the parties with regard to sentencing.” Id.
Only if we find a revocation sentence to be unreasonable do we proceed to the
second prong of our review to determine if the sentence is plainly unreasonable. In this
context, “plain is synonymous with clear or, equivalent, obvious,” Crudup, 461 F.3d at
469, and a sentence may be plainly unreasonable if it runs afoul of “clearly settled law.”
United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
A.
The first question that must be answered is whether the revocation sentence is
procedurally unreasonable. The majority finds that the district court committed a
procedural error by failing to address Slappy’s arguments–which the majority labels as
nonfrivolous–in favor of a sentence within the policy statement range and by failing to
explain why it rejected those arguments. To support this finding, the majority applies
United States v. Carter, 564 F.3d 325 (4th Cir. 2009), a case dealing with original
sentences which makes clear that a court must explain why it rejects nonfrivolous
arguments. While cases dealing with original sentences are instructive, Crudup, 461 F.3d
at 438–39, the majority fails to cite any binding circuit precedent that requires a district
court to address every nonfrivolous argument made in favor of a within-policy-range
15
revocation sentence. To the contrary, we have only held that the sentencing court’s
explanation should provide an “assurance that [it] . . . considered any potentially
meritorious arguments.” Moulden, 478 F.3d at 657 (emphasis added). 3
Here, such assurance is present. When imposing the sentence, the district court
specifically mentioned that it considered “the relevant factors listed in . . . § 3553(a).” Of
course, one of those factors is “the history and characteristics of the defendant.” 18
U.S.C. § 3553(a)(1). Slappy’s arguments for a lower sentence related to her history and
characteristics, i.e, her employment history, her efforts at rehabilitation, and her
community service. Moreover, although not part of the court’s explanation, the court
provided Slappy and her counsel with multiple opportunities to be heard. See United
States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006) (“[I]n determining whether
there has been an adequate explanation, we do not evaluate a court’s sentencing
statements in a vacuum. The context surrounding a district court’s explanation may
imbue it with enough content for us to evaluate” the reasonableness of the sentence.).
Thus, by considering the relevant § 3553(a) factors, hearing arguments from Slappy’s
counsel, and listening to Slappy’s pleas, the district court provided adequate assurances
that it considered Slappy’s potentially meritorious arguments for a lower sentence.
3
Moreover, because a district court “need not be as detailed or specific when
imposing a revocation sentence as it must be when imposing a post-conviction sentence,”
Thompson, 595 F.3d at 547, it reasonably follows that a court need not be as detailed
when addressing and/or rejecting nonfrivolous arguments when imposing a revocation
sentence as it must be when imposing an original sentence.
16
The majority also concludes that the district court procedurally erred by failing to
explain why it imposed the statutory maximum sentence. To this point, the majority
draws the conclusion that “it is not clear [from the record] that the court even considered
the relevant advisory range.” Ante 11. While the court did not affirmatively state the
advisory range, it was certainly aware of the range, as the parties stated it on three
separate occasions during the revocation hearing and the Supervised Release Violation
Worksheet clearly states it. See United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995)
(“The fact that the district court did not mention the . . . range provided by the policy
statement is not dispositive. A court need not engage in ritualistic incantation in order to
establish its consideration of a legal issue. It is sufficient if . . . the district court rules on
issues that have been fully presented for determination. Consideration is implicit in the
court’s ultimate ruling.”).
Additionally, the district court adequately explained why it departed from the
Chapter Seven policy statement range and imposed the statutory maximum sentence.
Specifically, the court noted Slappy’s history and characteristics, the need to protect the
public, and the need to provide deterrence. In doing so, the court referenced
individualized attributes of Slappy, including her submission of four positive drug
screens, her failure to participate in a urinalysis as directed, her incurrence of new
criminal charges, and her history of absconding from supervision. See Gall v. United
States, 552 U.S. 38, 50 (2007) (requiring an “individualized assessment” based on the
facts of the case before the court). The court also affirmatively stated that it considered
the Chapter Seven policy statements and the relevant factors contained in § 3553(a).
17
Finally, as evidenced by the context and record, see Rita v. United States, 551 U.S. 338,
359 (2007), the sentence reflects the court’s desire to sanction Slappy’s breach of trust in
accordance with the Chapter Seven policy statements. U.S. Sentencing Guidelines
Manual ch. 7, pt. A(3)(b) (2015). Therefore, I believe the court adequately explained why
the statutory maximum sentence was necessary and provided a sufficient explanation to
allow for meaningful appellate review.
Importantly, the district court’s statement of reasons for departing from the
Chapter Seven policy statement range “need not be as specific as has been required for
departing from a traditional guidelines range.” Moulden, 478 F.3d at 657. The majority
appears to elevate this standard, seemingly requiring district courts to be as specific in
revocation sentences as they are required to be in original sentencing. Additionally, the
majority requires of the district court just what we have previously counseled against, to
robotically recite the policy statement range and then tick through the § 3553(a) factors to
justify a differing sentence. See id. This approach flies in the face of our precedent and
improperly elevates a Chapter Seven policy statement range to be the equivalent of a
guidelines range. See Crudup, 467 F.3d at 439 n.9.
B.
Even assuming arguendo that the sentence is procedurally unreasonable, it is not
plainly so. The majority finds that the district court violated clearly settled law by failing
to mention Slappy’s arguments and by failing to provide any explanation for the sentence
imposed. As previously noted, our precedent does not require a sentencing court to
specifically mention and address a defendant’s arguments during a revocation sentence;
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we have only mandated that the sentencing court provide assurances that the arguments
were considered. See Moulden, 478 F.3d at 657. The district court could not have violated
clearly settled law when the majority is imposing a standard here in the first instance.
Additionally, the district court did provide an explanation for its sentence by specifically
referring to the § 3553(a) factors and addressing individualized attributes of Slappy.
Thus, even if unreasonable, neither alleged procedural error rises to the level of plainly
unreasonable.
II.
The majority misapplies the standards for reviewing a revocation sentence, and the
revocation sentence is not plainly unreasonable. Therefore, I dissent.
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