PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 09-4247
BARRY GLEN THOMPSON, a/k/a
Barry G. Thompson,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Joseph R. Goodwin, Chief District Judge.
(6:95-cr-00115-1)
Argued: December 4, 2009
Decided: February 23, 2010
Before NIEMEYER, MICHAEL, and GREGORY,
Circuit Judges.
Vacated and remanded by published opinion. Judge Gregory
wrote the majority opinion, in which Judge Michael joined.
Judge Niemeyer wrote a dissenting opinion.
COUNSEL
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appel-
2 UNITED STATES v. THOMPSON
lant. Monica Kaminski Schwartz, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appel-
lee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Lex A. Coleman, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Charleston, West
Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
The defendant, Barry Glen Thompson ("Thompson"), chal-
lenges the district court’s revoking his supervised release and
sentencing him to eighteen-months imprisonment. Thompson
claims the district court’s failure to explain its chosen sen-
tence was plainly unreasonable. We agree, vacate Thomp-
son’s sentence, and remand for a new sentencing hearing.
I.
On January 20, 2009, the United States Probation Office
petitioned to revoke Thompson’s supervised release. The peti-
tion alleged that Thompson had been arrested on two counts
of battery on, and obstruction of, a police officer and that he
had possessed methamphetamine. The petition also alleged
that Thompson had twice previously violated his supervised-
release terms by testing positive for narcotics.
At his revocation hearing, Thompson conceded that the
government could prove the charged violations. The district
court then determined that under the applicable, non-binding
policy tables, Thompson faced between twelve- and eighteen-
months imprisonment. Neither party objected to the calcula-
tion.
UNITED STATES v. THOMPSON 3
The court next gave each party an opportunity to argue for
the appropriate sentence. The government emphasized that
Thompson had committed battery on two police officers and
had done so at 2:00 a.m., which it believed was relevant.
Counsel for Thompson argued that it was his first violation,
he had minor children, and that he had been gainfully
employed since his initial release. Thompson also argued that
he had notified the police of loose ammunition in the squad
car following his arrest. Given this, Thompson sought a six-
month prison term, followed by supervised release.
The court then sentenced Thompson to eighteen-months
imprisonment followed by supervised release. Only when
defense counsel requested that Thompson be allowed to self-
report to prison did the court note that Thompson was proba-
bly not a flight risk, but that based on Thompson’s history,
conduct, and characteristics, the court could not say that he
was not a danger to the community. Thompson timely
appealed.
II.
This Court reviews whether or not sentences imposed upon
revocation of supervised release are within the prescribed stat-
utory range and are not "plainly unreasonable." United States
v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006). The govern-
ment argues that plain-error review applies here because
Thompson never objected below to the adequacy of the dis-
trict court’s sentencing explanation. As we explained in our
recent decision United States v. Lynn, ___ F.3d ___, 2010
U.S. App. LEXIS 1927 (4th Cir. Jan 28, 2010), though, a
defendant need only ask for a sentence outside the range cal-
culated by the court prior to sentencing in order to preserve
his claim for appellate review. Id. at *13. Because Thompson
did so here by requesting a six-month sentence, rather than a
sentence within the advisory range calculated by the district
court, we decline to apply plain-error review and proceed to
review whether his sentence is plainly unreasonable.
4 UNITED STATES v. THOMPSON
III.
When reviewing whether a revocation sentence is plainly
unreasonable, we must first determine whether it is unreason-
able at all. United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007); Crudup, 461 F.3d at 438. Thompson claims that
his sentence is procedurally unreasonable because the district
court failed to provide an adequate explanation for its chosen
sentence. We agree.
a.
Revocation sentences are governed by non-binding, policy
statements in the Sentencing Guidelines Manual. U.S. Sen-
tencing Guidelines Manual § 7(A)(1). Though a district court
must consider the Chapter Seven policy statements and other
statutory provisions applicable to revocation sentences, the
court has broad discretion to impose a particular sentence.
Crudup, 461 F.3d at 438; see Moulden, 478 F.3d at 656.
That discretion has some limits. A district court commits
significant procedural error where it "fail[s] to adequately
explain the chosen sentence." Gall v. United States, 552 U.S.
38, 51 (2007). This requirement applies "[r]egardless of
whether the district court imposes an above, below, or within-
Guidelines sentence." United States v. Carter, 564 F.3d 325,
330 (4th Cir. 2009) (internal quotation marks omitted). A
court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a post-
conviction sentence, but it still "must provide a statement of
reasons for the sentence imposed." Moulden, 478 F.3d at 657.
The district court provided no such statement here. Instead,
it simply stated: "It’s the judgment of the Court the defendant
be committed to the custody of the Federal Bureau of Prisons
for a term of 18 months." J.A. 42.* We may be hard-pressed
*Citations to J.A. __ refer to the Joint Appendix filed by the parties
upon appeal.
UNITED STATES v. THOMPSON 5
to find any explanation for within-range, revocation sentences
insufficient given the amount of deference we afford district
courts when imposing these sentences; but a district court
may not simply impose sentence without giving any indica-
tion of its reasons for doing so. Moulden, 478 F.3d at 657.
Were we to hold otherwise, district courts could effectively
thwart appellate review of any within-range revocation sen-
tences they impose. See Gall, 552 U.S. at 50.
The government argues that the district court’s statement
after sentencing Thompson made clear its reasons for impos-
ing that sentence. When Thompson requested voluntary sur-
render, the district court stated, "[b]ased on the character and
the conduct and history of the defendant, I can’t find that
there’s not a danger to the community, although I doubt
there’s a risk of flight." J.A. 43. This statement, the govern-
ment claims, shows that the court adequately considered the
relevant sentencing factors when imposing sentence. We
decline to reach such a speculative conclusion.
It is true that in some cases, a district court’s reasons for
imposing a within-range sentence may be clear from context,
Rita v. United States, 551 U.S. 338, 357 (2007), including the
court’s statements to the defendant throughout the sentencing
hearing. Lynn, 2010 U.S. App. 1927 at *31. But those other
statements must actually relate to the imposed sentence, not
some distinct, penological or administrative question. The dis-
trict court’s statement here did not explain the sentence it
imposed; rather, it explained the court’s reasons for not allow-
ing voluntary surrender. Under the circumstances, we cannot
impute the district court’s reasoning for the latter to the for-
mer. The sentence was therefore procedurally unreasonable.
b.
Having determined that the district court’s failure to
explain its chosen sentence was unreasonable, we must now
consider whether it was plainly so. To determine whether a
6 UNITED STATES v. THOMPSON
sentence is plainly unreasonable, this Court looks to the defi-
nition of "plain" used in plain-error analysis. Crudup, 461
F.3d at 439. For a sentence to be plainly unreasonable, there-
fore, it must run afoul of clearly settled law. See United States
v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
It is indeed true that the law as it relates to federal sentenc-
ing is in a state of flux, and that this Court, like our sister cir-
cuits, is still in the process of implementing many of the
Supreme Court’s recent pronouncements. See, e.g., Lynn,
2010 U.S. App. 1927 at *3; Carter, 564 F.3d at 330. We are
certain, though, 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. 478 F.3d at 657. Given
how clearly settled this requirement is, even as it applies to
revocation sentences, the district court’s failure to provide any
reasons for its sentence contravened clear circuit precedent
and was, therefore, plainly unreasonable.
c.
Finally, we cannot be sure that the district court’s failure to
justify the sentence imposed was harmless. For a procedural
sentencing error to be harmless, the government must prove
that the error did not have a "‘substantial and injurious effect
or influence’ on the result." Lynn, 2010 U.S. App. 1927 at *33
(quoting United States v. Curbelo, 343 F.3d 273, 278 (4th Cir.
2003)). Here, the government does not argue that the error
was harmless, and we cannot presume that it was under these
circumstances. Had the court explicitly considered Thomp-
son’s non-frivolous argument that he deserved leniency
because he had completed nearly all of his supervised release
without incident, it could conceivably have given him a lower
sentence. See id.
IV.
For the foregoing reasons, we vacate Thompson’s sentence
and remand to the district court for a new hearing.
UNITED STATES v. THOMPSON 7
VACATED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
Barry Thompson violated the terms of his supervised
release in being arrested on two counts for assaulting police
officers; by possessing methamphetamine; and by twice test-
ing positive for cocaine. The district court revoked his super-
vised release and imposed an 18-month sentence of
imprisonment, which was within the range recommended by
the Sentencing Guidelines.
Ordinarily, we review a sentence under a deferential abuse-
of-discretion standard, reversing only for unreasonableness.
See Gall v. United States, 552 U.S. 38, 41 (2007). But in
reviewing a sentence for violation of supervised release, our
standard is yet more deferential, as we may reverse only if we
find the sentence was "plainly unreasonable." See United
States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006).
I respectfully submit that the majority opinion in this case
affords the district court an inadequate measure of deference,
demanding that the district court state reasons that are obvious
from the record, from the arguments counsel made to the
court, and from what the court said and did.
The court found multiple violations of the terms of Thomp-
son’s supervised release. It explained that the violations were
of the "most serious grade," resulting in a Guidelines range of
12 to 18 months’ imprisonment. It imposed a sentence within
the recommended Guidelines range. It explained, in denying
Thompson the opportunity to surrender voluntarily that it
could not find that Thompson was "not a danger to the com-
munity." And finally, it explained:
You did such a long stretch. I thought you were
going to make it. You’ve got 18 months of super-
vised release when you get out the next time. If you
8 UNITED STATES v. THOMPSON
can just do that without getting in trouble, you can
be free of this stuff. I hope you can do that. Good
luck to you.
This record adequately satisfies the Supreme Court’s stan-
dard in sentencing a defendant within the Guidelines range.
As the Court explained in Rita v. United States:
The sentencing judge should set forth enough to sat-
isfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.
Nonetheless, when a judge decides simply to apply
the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation. Circum-
stances may well make clear that the judge rests his
decision upon the Commission’s own reasoning that
the Guidelines sentence is a proper sentence (in
terms of § 3553(a) and other congressional man-
dates) in the typical case, and that the judge found
that the case before him is typical.
551 U.S. 338, 356-57 (2007) (emphasis added) (citation omit-
ted). In Rita, the sentencing judge listened to the arguments
of counsel, which requested a downward departure, and then
simply observed that a sentence at the bottom end of the
Guidelines range was "appropriate." Id. at 358-59. Approving
the explanation, the Court said what is particularly appropri-
ate here:
We acknowledge that the judge might have said
more. He might have added explicitly that he had
heard and considered the evidence and argument;
that (as no one before him denied) he thought the
Commission in the Guidelines had determined a sen-
tence that was proper in the mine run of roughly sim-
ilar perjury cases; and he found that Rita’s personal
circumstances here were simply not different enough
UNITED STATES v. THOMPSON 9
to warrant a different sentence. But context and the
record made clear that this, or similar, reasoning
underlies the judge’s conclusion. Where a matter is
conceptually simple as in the case at hand and the
record makes clear that the sentencing judge consid-
ered the evidence and arguments, we do not believe
the law requires the judge to write more extensively.
Id. at 359.
The record in this case is strikingly similar to that presented
in Rita, except in this case we owe the district court even
more deference because the defendant was back, after having
been originally sentenced, for a revocation of his supervised
release. See Crudup, 461 F.3d at 438.
While the majority opinion properly articulates the stan-
dards for reviewing a district court’s sentence, its holding in
this specific case falls elsewhere.