UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4505
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH WAYNE TOLBERT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:04-cr-00059-LHT-DLH-1)
Submitted: March 16, 2010 Decided: April 12, 2010
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Steven Slawinski,
Assistant Federal Defender, Erin K. Taylor, Research and Writing
Attorney, Charlotte, North Carolina, for Appellant. Edward R.
Ryan, United States Attorney, Charlotte, North Carolina; Amy E.
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Wayne Tolbert appeals the district court’s
judgment revoking his supervised release and sentencing him to
eighteen months’ imprisonment. On appeal, Tolbert alleges that
the district court erred in allowing him to proceed pro se and
that his sentence is plainly unreasonable. For the following
reasons, we affirm the district court’s decision to revoke
Tolbert’s supervised release, but vacate Tolbert’s sentence and
remand for a new sentencing hearing.
“A defendant’s supervised release cannot be revoked
without a full hearing unless the defendant knowingly and
voluntarily admits to the allegations against [him] and waives
[his] rights under Rule 32.1 of the Federal Rules of Criminal
Procedure.” United States v. Farrell, 393 F.3d 498, 500 (4th
Cir. 2005). The right to counsel at a revocation hearing is
established by Rule 32.1(b)(2)(D). Waiver of the rights
provided in Rule 32.1 must be knowing and voluntary, as assessed
under the totality of the circumstances. Id.; see also United
States v. Hodges, 460 F.3d 646, 651 (5th Cir. 2006) (holding
that a waiver of counsel in revocation proceedings “must be
knowing and voluntary as demonstrated either through a colloquy
with the district court, or by the totality of circumstances, or
both.”). After a thorough review of the record, we find that
the totality of the circumstances indicate that Tolbert’s waiver
2
of his right to counsel and his decision to proceed pro se were
knowing and voluntary. Id.
We find merit, however, in Tolbert’s challenge to his
sentence. This court will affirm a sentence imposed after
revocation of supervised release if it is within the prescribed
statutory range and not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). When reviewing
whether a revocation sentence is plainly unreasonable, we must
first look to whether it is unreasonable. United States v.
Moulden, 478 F.3d 652, 656 (4th Cir. 2007); Crudup, 461 F.3d at
438.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Chapter Seven advisory policy statement range and the 18 U.S.C.
§ 3553(a) (2006) factors applicable to supervised release
revocation. See 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at
439. Because the district court here did not state that it
considered the Guidelines’ policy statements, and did not even
discuss, calculate, or adopt the probation officer’s actual
advisory Guidelines range, we find that Tolbert’s sentence is
procedurally unreasonable.
Having found the sentence unreasonable, we must next
assess whether the sentence is “plainly unreasonable.” To
decide whether a sentence is plainly unreasonable, we look to
3
the definition of “plain” as used in plain-error analysis.
Crudup, 461 F.3d at 439. A plainly unreasonable sentence runs
afoul of clearly established law. See United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005).
Because Tolbert did not preserve this claim for
appellate review, we review for plain error. Fed. R. Crim. P.
52(b); United States v. Branch, 537 F.3d 328, 343 (4th Cir.
2008), cert. denied, 129 S. Ct. 943 (2009). To receive relief
under the plain error standard of review, Tolbert must show
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). As stated above, we recognize a
sentencing error and find it to be plainly unreasonable because
it runs afoul of clearly established law. See Crudup, 461 F.3d
at 439. Because the sentence imposed by the district court was
double the maximum of the advisory Guideline range as calculated
by the probation officer, we find that the error affects
Tolbert’s substantial rights. And we choose to exercise our
“remedial discretion,” Olano, 507 U.S. at 736, because the
district court’s failure to calculate and consider the Chapter
Seven advisory sentencing range affected the fairness of the
proceeding.
Accordingly, although we affirm the district court’s
decision revoking Tolbert’s supervised release, we vacate his
4
sentence for a procedural sentencing error and remand for
resentencing. By this disposition, we indicate no view as to
the appropriate sentence to be imposed by the district court on
remand. We emphasize in this regard that we have not evaluated
the substantive reasonableness of the sentence imposed by the
district court; we have concluded only that the sentencing
procedure followed by the district court was in error. 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
5