UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4817
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THEODUS WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:96-cr-00109-BO-2)
Argued: September 24, 2010 Decided: November 12, 2010
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theodus Williams appeals a twenty-four month sentence for
violating the terms of his supervised release. Williams argues
that his sentence is plainly unreasonable and that the district
court erred when, rather than relying on 18 U.S.C. § 3553
factors, it made an unfounded statement about who Williams
likely associated with in the past. For the reasons that
follow, we must affirm Williams’ sentence.
In 1996, Williams was convicted of being a felon in
possession of a firearm under 18 U.S.C. § 922(g) and aiding and
abetting. He was sentenced to a 120 month prison term followed
by thirty-six months of supervised release. On February 22,
2008, Williams was released from prison and began his supervised
release. More than a year later, on March 13, 2009, the
district court continued Williams on supervision after he
received traffic violations for driving with a revoked license
and having tinted windows.
On June 9, 2009, Williams tested positive for cocaine use
and admitted that he had used the drug three days earlier.
Based on this test and his earlier traffic violations, Williams’
probation officer petitioned the district court for
modifications to the terms of his supervision. Nine days later,
on June 18, the court granted the petition. Williams was
ordered to spend two days in prison and to enroll in the
2
Surprise Urinalysis Program for an additional ninety days.
Williams was also ordered to participate in the Drug Reduction
on Probation and Supervised Release (“DROPS”) program. Once
enrolled in the DROPS program, an individual on supervised
release can be incrementally imprisoned, beginning with two days
after the first positive test for drug use, five days after the
second use, ten days after the third use, and so on. Under the
terms of the DROPS program, the total term of imprisonment for
drug use cannot exceed thirty days. Williams began at the first
level of use.
Less than a month later, on July 9, 2009, Williams’
probation officer petitioned the court to revoke supervised
release. In addition to the infractions contained in the June
18 petition, this second petition listed three new violations:
(1) criminal conduct, for Williams’ felony charge of possession
of cocaine then before the North Carolina, Vance County District
Court; (2) possessing a controlled substance; and (3) using a
controlled substance because, on July 2, Williams admitted to
his probation officer that he had used cocaine several times in
the last month. All three violations stemmed from a single June
19, 2009 incident where Williams was arrested by local police
for possessing a vial containing cocaine residue. The district
court issued a warrant for Williams’ arrest.
3
At the July 29, 2009, revocation hearing before the
district court, Williams admitted to violations (2) and (3), and
did not contest violation (1). Williams also apologized for his
conduct, and stated that he was ready for “[w]hatever
consequence I’ve got to face, I’m ready to own up to it.” The
government then informed the court of Williams’ “really bad
record,” involving drugs and the shooting of at least two
people. After informing the court of the statutory guidelines
range, twenty-one to twenty-four months, the government asked
for the maximum. The court then asked defense counsel if there
was “Anything else?” Defense counsel responded that Williams
had been arrested with only a small canister holding cocaine
residue for personal use, had been working, was thirty-nine
years old, and was living in Henderson.
The court interrupted defense counsel to observe that
Williams was “born and raised in Henderson, and he has a record
. . . in Henderson that goes back over twenty years.” The
hearing then continued:
The Court: [Y]ou’ve been around here with me over the
past couple of decades and you’ve got the crowds from
the ‘80s and the ‘90s and the 2000s, all from
Henderson. I mean, he probably hung out with the
Lance Morrison crowd and the old – Hickmans and all
those people. I mean, but he’s spent ten years in
jail so he missed some of it. But, I mean, you’re 39,
you’re going to be 40 years old.
Defendant: Yeah, I just turned 39 yesterday, sir.
4
The Court: Yeah. Okay. You’re 39. Anyway, I’ll
give him the 24 months.
The court then entered a judgment against Williams, but said
nothing further about the sentence.
The court’s statements about Williams’ possible past
associations with Lance Morrison and the “Hickmans” in
Henderson, North Carolina were groundless. The comments did not
appear to be based on any facts in the record or any evidence
presented by the parties. Nor were they relevant to the court’s
obligations under 18 U.S.C. § 3583(e), which required it to
assess Williams’ revocation sentence using the section 3553
factors.
Nonetheless, neither Williams nor his counsel requested a
sentence within the guidelines range, sought a sentence that
departed from the guidelines range, or even mentioned his court-
ordered enrollment in the DROPS program.
“[R]evocation sentences should be reviewed to determine
whether they are ‘plainly unreasonable’ with regard to those
§ 3553(a) factors applicable to supervised release revocation
sentences.” United States v. Crudup, 461 F.3d 433, 437 (4th
Cir. 2006). However, where, as here, the defendant fails to
reserve an objection to a sentence by “sufficiently alert[ing]
the district court of its responsibility to render an
individualized explanation” pursuant to the § 3553 factors, we
5
apply the more rigorous plain error standard of review. United
States v. Lynn, 592 F.3d 572, 577-80 (4th Cir. 2010).
The plain error standard of review is a demanding one. The
defendant must identify an error, demonstrate that the error was
plain, and show that it affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). And, even when we do
detect a plain error, we must refrain from reversing the
district court unless the error will “seriously affect[] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (citations omitted).
It is clear that the district court committed an error in
failing to consider the section 3553 factors. While the
district court has broad discretion to impose a particular
sentence, “[a] district court commits a significant procedural
error where it ‘fail[s] to adequately explain the chosen
sentence.’” United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010) (quoting 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.’” Id. (quoting United States v. Carter, 564 F.3d 325,
330 (4th Cir. 2009)). Though “[a] court need not be as detailed
or specific when imposing a revocation sentence,” Thompson, 595
F.3d at 547, here, the district court provided no valid basis
for its sentence. Instead, it simply came to the conclusion,
6
without any evidence, that Williams “probably hung out with”
particular people over the years. The court’s speculative
comments fall far short of its obligations under 18 U.S.C.
§ 3583(e), which required the court to make an individualized
assessment of Williams using the section 3553 factors before
revoking his supervised release.
The error was also “plain” in so far as it violated
established law. “An error is plain ‘where the law at the time
of trial was settled and clearly contrary to the law at the time
of appeal.’” United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005) (quoting Johnson v. United States, 520 U.S. 461, 468
(1997)).
It is indeed true that the law as it relates to
federal sentencing is in a state of flux . . . . 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 United States v. Moulden, 478 F.3d 652,
657 (4th Cir. 2007). 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 . . . .
Thompson, 595 F.3d at 547-48 (noting that the analysis of
“plain” in “plain error” is the same as that of “plainly” in
“plainly unreasonable”). Thus, the district court had adequate
notice that this form of cursory sentencing was improper.
7
Finally, having established that the district court
committed an error and that it was plain, this Court must
determine whether the error also implicated Williams’
“substantial rights.” Olano, 507 U.S. at 732. An error affects
substantial rights if it was prejudicial or affected the outcome
of a case. Hughes, 401 F.3d at 548. The burden to prove that
the error was prejudicial falls on the defendant, Williams. Id.
Williams alleges that the dubious comments of the district
court were prejudicial. Yet, at the revocation hearing, neither
Williams nor his counsel made any arguments about the
sufficiency of the court’s findings or requested an alternative
sentence. The court provided Williams and his counsel with
opportunities to speak prior to the imposition of the sentence.
In response, Williams stated his intention to accept “[w]hatever
consequence I’ve got to face, I’m ready to own up to it.”
Defense counsel also did not request a within or below
guidelines sentence or even mention the section 3553 factors.
Worse, counsel utterly failed to refer to Williams’ involvement
in the DROPS program. Under the terms of that program,
Williams’ second drug use violation would have led to only five
days in prison, rather than twenty-four months. Thereafter, the
court sentenced Williams to twenty-four months of imprisonment,
a within guidelines sentence and the only sentence proposed by
either side at the hearing. See United States v. Montes-Pineda,
8
445 F.3d 375, 379 (4th Cir. 2006) (“[A] sentence within a
properly calculated advisory Guidelines range is presumptively
reasonable.”). At the end of the hearing, following both the
court’s unfounded statements and the sentencing, defense counsel
again failed to raise an objection. Counsel merely closed by
thanking the court.
The unsubstantiated comments of the district court were
unfortunate and make this case somewhat troubling.
Nevertheless, in light of Williams’ own seeming willingness to
accept any sentence, defense counsel’s failure to ask for an
alternative sentence, the government’s unrebutted discussion of
Williams’ violent criminal history and the court having provided
Williams with a within guidelines sentence, it would be far too
speculative for us to find that the district court’s comments
prejudicially affected Williams’ sentencing. See Lynn, 592 F.3d
at 580.
Although we do find that the district court plainly erred,
Williams’ inability to show that the court’s error affected his
substantial rights is fatal to his appeal. Therefore, we must
AFFIRM.
9