UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4644
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID NATHANIEL JOHNSON, SR.,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:03-cr-00089-nkm-1)
Submitted: March 29, 2010 Decided: June 2, 2010
Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Joel C. Hoppe,
Assistant Federal Public Defender, Charlottesville, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney,
Ronald M. Huber, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Nathaniel Johnson, Sr., appeals the district
court’s order revoking his supervised release and sentencing him
to twenty-one months in prison. Johnson argues that: (i) the
district court erred when it determined that his drug possession
violation constituted a Grade B violation, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 7B1.1(a)(2) (2008),
because there allegedly was only a “dearth of evidence” that he
possessed drugs in Virginia; and (ii) his twenty-one-month
sentence is plainly unreasonable because the district court
failed to address his attorney’s argument in mitigation, and
failed to provide an individualized rationale for the sentence
it imposed. Although we defer to the district court’s
determination that Johnson committed a Grade B violation, we
nonetheless vacate and remand to the district court for
resentencing.
Where, as here, a defendant first presents his
assignments of error to the district court or argues for a
sentence below the advisory policy statement sentencing range
calculated by the district court, we review a sentence imposed
after revocation of supervised release to determine whether it
is “plainly unreasonable.” See United States v. Thompson, 595
F.3d 544, 546 (4th Cir. 2010); United States v. Crudup, 461 F.3d
433, 437-40 (4th Cir. 2006). The first step in this analysis is
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to determine whether the sentence was unreasonable. Crudup, 461
F.3d at 438. In conducting this review, the court follows
generally the procedural and substantive considerations employed
in reviewing original sentences. Id. at 438-39; see United
States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In
applying the ‘plainly unreasonable’ standard, we first
determine, using the instructions given in Gall [v. United
States, 552 U.S. 38, 51 (2007)], whether a sentence is
‘unreasonable.’”).
The district court commits procedural error by
improperly calculating the advisory policy statement sentencing
range. Gall, 552 U.S. at 51. In assessing whether the district
court properly applied the Guidelines, we review the district
court’s factual findings for clear error and its legal
conclusions de novo. United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008). For mixed questions of law and fact, we
apply a due deference standard in reviewing the district court.
Id.
“Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence[,]” procedural error
also occurs when the district court fails to adequately explain
the chosen sentence with an “individualized assessment.” United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal
quotation marks omitted). “A court need not be as detailed or
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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.” Thompson,
595 F.3d at 547 (internal citation and quotation marks omitted).
“If, and only if, [the court] find[s] the sentence procedurally
reasonable can [it] consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.”
Carter, 564 F.3d at 328 (internal quotation marks and citations
omitted). Only if a sentence is found procedurally or
substantively unreasonable will this court “decide whether the
sentence is plainly unreasonable.” Crudup, 461 F.3d at 439; see
Finley, 531 F.3d at 294.
We defer to the district court’s determination that
Johnson remained within Virginia’s borders during his supervised
release and that when he possessed narcotics, he did so in
Virginia. One of the conditions of Johnson’s supervised release
was that he not leave Virginia without the court’s or probation
officer’s permission, and it was uncontested that Johnson
engaged in nearly daily narcotics use in April and May 2009, and
tested positive for cocaine in Virginia on three separate
occasions. We find this circumstantial evidence sufficient to
establish that Johnson possessed cocaine within Virginia’s
borders during his supervised release and, thus, his violation
was properly classified as a Grade B violation. See USSG
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§ 7B1.1(a)(2) (2008); see also Va. Code Ann. §§ 18.2-10(e);
18.2-250; 54.1-3448(1) (2009).
We nonetheless vacate Johnson’s sentence because we
find that the district court did not provide a sufficient
explanation for its sentence to allow for meaningful appellate
review. Although Johnson argued for a sentence below his
advisory policy statement sentencing range, the district court
failed to respond to Johnson’s arguments and provided no
statement of reasons for the sentence imposed other than stating
that it imposed the twenty-one-month sentence “[p]ursuant to the
factors in 3553(a) and considering the Sentencing Guidelines.”
“[A] district court may not simply impose sentence without
giving any indication of its reasons for doing so.” Thompson,
595 F.3d at 547. Accordingly, we find that the district court’s
sentence is procedurally unreasonable. *
Having determined that the district court’s failure to
explain its chosen sentence was unreasonable, we next determine
*
Although the district court did indicate before Johnson
allocuted that it found Johnson had “illegally possessed a
controlled substance more than one time and that he, by his own
admission, was transferring drugs during this period of
Supervised Release,” the district court appears to have made
this statement to explain why it believed Johnson possessed
cocaine during his supervised release and why it adopted the
Violation Report’s advisory policy statement sentencing range.
Thus, we may not assume that this statement was meant to justify
the particular sentence the district court chose to impose.
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whether it was plainly so. Crudup, 461 F.3d at 439. As we have
recently recognized, a district court’s obligation to provide
some basis for appellate review when imposing a revocation
sentence has been settled in this circuit for some time and,
thus, “the district court’s failure to provide any reasons for
its sentence contravened clear circuit precedent and [is],
therefore, plainly unreasonable.” Thompson, 595 F.3d at 548.
Because the Government does not assert that the district court’s
error was harmless, this court may not presume that it is so.
Id.
Accordingly, although we find no error in the district
court’s advisory policy statement sentencing range calculation,
we vacate Johnson’s sentence and remand to the district court
for further proceedings consistent with this opinion. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
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