UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4785
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEVIN ROCHARD MEANS, JR., a/k/a Little D, a/k/a Devin
Rochard Means,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:07-cr-01467-HMH-5)
Submitted: April 24, 2014 Decided: May 2, 2014
Before SHEDD and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United States
Attorney, William J. Watkins, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Devin Rochard Means, Jr., appeals from his
twenty-four-month sentence imposed pursuant to the revocation of
his supervised release. On appeal, Means avers that his
sentence was plainly unreasonable because the district court did
not give individualized reasoning for the chosen sentence. * We
affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
maximum and not “plainly unreasonable.” United States v.
Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In making our
review, we “follow generally the procedural and substantive
considerations that [are] employ[ed] in [the] review of original
sentences, . . . with some necessary modifications to take into
account the unique nature of supervised release revocation
sentences.” Id. at 438-39. Only if a sentence is found
procedurally or substantively unreasonable will we “decide
whether the sentence is plainly unreasonable.” Id. (emphasis
in original).
*
Means’ counsel initially filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), concluding that there
were no meritorious issues for appeal. However, when our review
of the record pursuant to Anders revealed non-frivolous claims,
we ordered counsel to file a merits brief. Means’ merits brief
challenges only the adequacy of the court’s explanation of
sentence and, therefore, waives all other claims.
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When imposing sentence, the district court must
provide individualized reasoning:
The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority
. . . . Where the defendant . . . presents
nonfrivolous reasons for imposing a different sentence
than that set forth in the advisory Guidelines, a
district judge should address the party’s arguments
and explain why he has rejected those arguments.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The
Carter rationale applies to revocation hearings; however, “[a]
court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a
post-conviction sentence.” United States v. Thompson, 595 F.3d
544, 547-48 (4th Cir. 2010) (noting that a district court’s
reasoning may be “clear from context” and the court’s statements
throughout the sentencing hearing may be considered). In fact,
in a case of supervised release revocation, we “may be
hard-pressed to find any explanation for within-range,
revocation sentences insufficient given the amount of deference
. . . afford[ed to] district courts when imposing these
sentences; but a district court may not simply impose sentence
without giving any indication of its reasons for doing so.” Id.
(emphasis in original).
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . [that] it has made before the district
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court, [this court] review[s] for abuse of discretion” and will
reverse unless it concludes “that the error was harmless.”
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For
instance, if “an aggrieved party sufficiently alerts the
district court of its responsibility to render an individualized
explanation” by drawing arguments from 18 U.S.C. § 3553(a)
(2012) “for a sentence different than the one ultimately
imposed,” the party sufficiently “preserves its claim.” Id. at
578. However, we review unpreserved non-structural sentencing
errors for plain error. Id. at 576–77. To establish plain
error, a defendant must show that an error occurred, that the
error was plain, and that the error affected his substantial
rights. United States v. Aidoo, 670 F.3d 600, 611 (4th Cir.
2012), cert. denied, 133 S. Ct. 627 (2012). Finally, plain
errors should only be corrected where not doing so would result
in a miscarriage of justice. United States v. Robinson, 627
F.3d 941, 954 (4th Cir. 2010). Because counsel did not request
a sentence below the Guidelines range, we review for plain
error.
Here, there is no dispute that the sentence falls
within the applicable statutory maximum of five years’
imprisonment. 18 U.S.C. § 3559(a)(1) (2012); 18 U.S.C.
§ 3583(e)(3) (2012). The district court also adopted without
objection the Chapter 7 advisory policy statement range of
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twenty-four to thirty months’ imprisonment and heard argument
from counsel and allocution from Means. However, the record
reveals that the court offered no reasoning for its chosen
sentence. Such was error, and the error was plain. See
Thompson, 595 F.3d at 548 (noting that the requirement to
provide a minimal statement of reasons for the sentence imposed
in revocation proceedings is “clearly settled”).
However, we conclude that the error did not affect
Means’ substantial rights. Means was sentenced to the bottom of
the policy statement range, his counsel did not request a lower
sentence, and a district court has broad discretion to impose
sentence. Means does not argue that the court would have
imposed a lower sentence had it provided a more thorough
explanation, and nothing in the record supports such an
argument. See United States v. Knight, 606 F.3d 171, 178 (4th
Cir. 2010) (explaining that, to demonstrate that a sentencing
error affected defendant’s substantial rights, the defendant
must show that he would have received a lower sentence had the
error not occurred).
In addition, there was no miscarriage of justice in
this case. Although the court’s explanation did not reveal that
it had considered the relevant § 3553(a) factors, the court
explicitly adopted the probation officer’s Guidelines range as
calculated in his violation report, and the report addressed the
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facts and circumstances of Means’ violation, as well as his
underlying criminal conduct. Moreover, the court clearly
listened to counsel’s argument, as the court permitted the
self-reporting that Means requested. Given that counsel did not
request a lower sentence, the court acted well within the bounds
of justice by imposing a presumptively reasonable sentence at
the low end of the advisory Guidelines range. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (“[W]e may
and do treat on appeal a district court’s decision to impose a
sentence within the Guidelines range as presumptively
reasonable.”). As such, we decline to correct the district
court’s error.
Accordingly, Means’ sentence is affirmed. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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