United States v. Jhirmick Cabbagestalk

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4668
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JHIRMICK CABBAGESTALK, a/k/a Thomas Blanchard,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00397-F-1)
Submitted: March 14, 2014 Decided: May 6, 2014
Before MOTZ, GREGORY, and KEENAN, 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Vacated and remanded by unpublished per curiam opinion.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. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Seth M. Wood, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jhirmick Cabbagestalk appeals the district court’s judgment
revoking his supervised release and imposing a twenty-four-month
prison term. On appeal, Cabbagestalk challenges the procedural
and substantive reasonableness of his sentence. For the reasons
that follow, we vacate the district court’s judgment and remand
for resentencing.
In examining a sentence imposed upon revocation of
supervised release, this Court “takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (internal quotation marks omitted). We will
affirm a revocation sentence if it falls within the statutory
range and is not “plainly unreasonable.” United States v.
Crudup, 461 F.3d 433, 437-40 (4th Cir. 2006) (internal quotation
marks omitted). We must first determine whether the sentence is
unreasonable, using the same general analysis employed in our
review of original sentences. Id. at 438. A revocation
sentence is procedurally reasonable if the district court has
considered the policy statements contained in Chapter Seven of
the U.S. Sentencing Guidelines Manual and the applicable
18 U.S.C. § 3553(a) factors, see Crudup, 461 F.3d at 440, and
provides an adequate explanation for the sentence it imposes.
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United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
If the sentence is procedurally or substantively unreasonable,
we will consider whether it is “plainly” so. Crudup, 461 F.3d
at 439.
In explaining a sentence, the district court is not
required to “robotically tick through § 3553(a)’s every
subsection.” United States v. Powell, 650 F.3d 388, 395
(4th Cir. 2011) (internal quotation marks omitted). However,
the court must conduct an “individualized assessment justifying
the sentence imposed and rejection of arguments for a higher or
lower sentence based on § 3553.” United States v. Lynn,
592 F.3d 572, 584 (4th Cir. 2010) (internal quotation marks
omitted). Where the defendant or prosecutor presents
“nonfrivolous reasons” for imposing a different sentence,
“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) (internal quotation
marks omitted).
In this case, counsel for both the Government and
Cabbagestalk requested that the district court impose a sentence
within the policy statement range of five to eleven months’
imprisonment. The district court responded that it thought
“maybe more than the Guideline range [wa]s appropriate” because
Cabbagestalk’s violation of his supervised release “was an
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intentional absconsion” and Cabbagestalk “tried to avoid the
probation officer.” Counsel for the Government agreed with the
court’s description, and the court stated that Cabbagestalk’s
behavior was indicative of an individual who “just doesn’t want
to work with the system.” The district court then imposed the
statutory maximum sentence of twenty-four months’ imprisonment.
18 U.S.C. §§ 3559(a)(3), 3583(e)(3).
On appeal, Cabbagestalk contends that his sentence is
unreasonable because the district court failed to address his
argument that a sentence within the policy statement range of
five to eleven months’ imprisonment was warranted in light of
his mental health circumstances, and because the court “evinced
little individualized assessment” of him. Cabbagestalk also
contends that his sentence is unreasonable in light of his need
for mental health treatment and because the district court
improperly cited to the need for the sentence to promote respect
for the law.
While the court’s statements during the revocation hearing
did provide some context for its decisionmaking, we conclude
that they were inadequate to demonstrate the court’s meaningful
consideration of the nonfrivolous arguments raised by
Cabbagestalk in support of a sentence within the policy
statement range. Accordingly, we vacate Cabbagestalk’s sentence
and remand for resentencing. On remand, the district court
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should consider Cabbagestalk’s nonfrivolous arguments regarding
his mental health and family circumstances. * 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
*
Because we agree that Cabbagestalk’s sentence is plainly
procedurally unreasonable in light of the district court’s
failure to make an individualized assessment in this case, we
need not address his arguments that the sentence was otherwise
procedurally unreasonable because the court improperly cited the
need for the sentence to promote respect for the law or
substantively unreasonable in light of his need for mental
health treatment. By our disposition, we indicate no view as to
the appropriate sentence to be imposed on remand.
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