UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4699
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES DONOVAN FORD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:00-cr-00061-GCM-1)
Submitted: May 24, 2010 Decided: June 24, 2010
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Edward R. Ryan, United States
Attorney, Mark A. Jones, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Donovan Ford appeals from the twenty-four month
sentence imposed following the revocation of his supervised
release. Finding Ford’s sentence procedurally plainly
unreasonable, we vacate and remand for resentencing.
The following colloquy occurred at sentencing immediately
after the court found by a preponderance of the evidence that
Ford had violated his supervised release:
THE COURT: Revocation table provides for a guideline
of 33 to 41 months. However, the guideline range
exceeds the statutory authorized term and becomes 24
months’ incarceration. And that’s what the court
orders.
MS. MARROQUIN [Defense counsel]: Your Honor, with all
due respect, we would just like to make some
additional argument as to sentencing if this court
would allow it.
THE COURT: I don’t think so. I think he’s got 33 to
41 months under the guideline. Twenty-four months is
all, that’s authorized. Under the circumstances I
think that’s pretty light.
MS. MARROQUIN: Your Honor, just for purposes of the
record, we would just object that we believe that the
sentence was procedurally and substantively
unreasonable. Thank you.
THE COURT: Very well.
MS. ESCARAVAGE [Assistant United States Attorney]:
Your Honor, I do think the defendant does have a right
to allocute. If we could just have that on the
record.
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THE COURT: If he wants anything to say, he may say so.
Ford then addressed the court, stating that he had
continually worked since being released from prison. He
asserted that he had already spent time in a halfway house for
his cocaine and marijuana use and that the remaining violations
were based on lies that he had not been permitted to rebut. The
court then stated, “Okay. I see no reason to change what I have
announced as the proposed sentence of 24 months’ incarceration
and revocation.”
We review 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 in reviewing
original sentences. Id. However, “[t]his initial inquiry takes
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 Crudup, 461 F.3d at 438). If a
sentence imposed after a revocation is not unreasonable, this
court will not proceed to the second prong of the analysis --
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whether the sentence was plainly unreasonable. Crudup, 461 F.3d
at 439.
When imposing a sentence, a district court must conduct an
“individualized assessment” of the particular facts of the case,
whether the court imposes a sentence above, below, or within the
guidelines range. United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). While “[t]his individualized assessment need
not be elaborate or lengthy, . . . it must provide a rationale
tailored to the particular case at hand and adequate to permit
meaningful appellate review.” Id. (internal quotation marks and
citation omitted). In addition, “[w]here [the parties]
present[] nonfrivolous reasons for imposing a . . . sentence
[outside the advisory guidelines range,] . . . a district judge
should address the party’s arguments and explain why he has
rejected those arguments.” Id. at 328 (internal quotation marks
and citation omitted). An appellate court may not guess at a
district court’s sentencing rationale. Id. at 329-30; see also
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010)
(applying Carter to revocation hearings, but noting that “[a]
court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a post-
conviction sentence . . . .”).
Here, the court did not permit Ford’s counsel to speak
regarding an appropriate sentence, even after she lodged an
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objection. Further, although the court permitted Ford to
allocute, it did not address the arguments he raised,
specifically his work history and his prior punishment for some
of the charged violations. Moreover, the court did not provide
an explanation for its sentence, aside from stating that it
calculated the Guidelines range and found it lenient. Because
the district court has provided no basis on which to review its
reasoning on appeal and because the court failed to even permit
counsel to be heard, we conclude that Ford’s sentence is
procedurally unreasonable. See United States v. Gutierrez, 555
F.3d 105, 110 (2d Cir.) (recognizing that defendants have the
“right to have an attorney address the sentencing court on
[their] behalf”), cert. denied, 129 S. Ct. 2024 (2009).
Having found the sentence unreasonable, we now proceed to
determine whether the sentence is plainly unreasonable. To be
plainly unreasonable, a sentence must “run afoul of clearly
settled law.” Thompson, 595 F.3d at 548. In Thompson, we noted
that “the district court’s obligation to provide some basis for
appellate review when imposing a revocation sentence . . . has
been settled since at least [2007].” Id. Thus, we held that
“the district court’s failure to provide any reasons for its
sentence contravened clear circuit precedent and was, therefore,
plainly unreasonable.” Id. Applying Thompson’s reasoning, we
conclude that Ford’s sentence is plainly unreasonable.
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Accordingly, we vacate Ford’s sentence and remand for
resentencing. 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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