UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4846
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRYAN DEVONAR TATE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:08-cr-00462-HMH-1)
Submitted: August 14, 2014 Decided: August 25, 2014
Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Carrie Fisher Sherard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryan Devonar Tate appeals the district court’s order
revoking his supervised release and sentencing him to sixteen
months’ imprisonment. Counsel initially filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
were no meritorious grounds for appeal but questioning whether
the district court abused its discretion by revoking Tate’s
supervised release and in imposing sentence. After conducting
our review pursuant to Anders, we sought supplemental briefing
to address whether the district court adequately explained the
reasons for its sentence. Although we affirm the revocation of
Tate’s supervised release, we conclude that the district court’s
explanation was insufficient; thus, we vacate the sentence and
remand for resentencing.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). Accordingly,
in examining a revocation sentence, we “take[] a more
deferential appellate posture concerning issues of fact and the
exercise of discretion than reasonableness review for
[G]uidelines sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007) (internal quotation marks omitted). We
will affirm a revocation sentence that falls within the
statutory maximum, unless we find the sentence to be “plainly
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unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th
Cir. 2006). In reviewing a revocation sentence, we must first
determine “whether the sentence is unreasonable,” using the same
general analysis employed to review original sentences. Id. at
438. Only if we find a sentence to be procedurally or
substantively unreasonable will we determine whether the
sentence is “plainly” so. Id. at 439. A sentence is plainly
unreasonable if it “run[s] afoul of clearly settled law.”
United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
A revocation sentence is procedurally reasonable if,
among other factors, the court provides a sufficient explanation
for its chosen sentence. Id. at 547. In explaining its
sentence, the district court is not required to “robotically
tick through [18 U.S.C.] § 3553(a)’s every subsection,
particularly when imposing a within-Guidelines sentence.”
United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011)
(internal quotation marks omitted). However, “[w]here the
defendant or prosecutor 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)
(internal quotation marks omitted). Although a district court
imposing a revocation sentence need not provide as detailed an
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explanation as that required in imposing an original sentence,
it “may not simply impose sentence without giving any indication
of its reason for doing so.” Thompson, 595 F.3d at 547
(emphasis in original). This is “clearly settled law.” Id. at
548.
Tate preserved his challenge to the adequacy of the
district court’s explanation by “drawing arguments from § 3553
for a sentence different than the one ultimately imposed” by the
district court. United States v. Lynn, 592 F.3d 572, 578 (4th
Cir. 2010). The Government has conceded that the court’s brief
statement was inadequate and that the court’s failure to provide
a sufficient explanation renders Tate’s sentence plainly
procedurally unreasonable. Although we do not suggest that the
court did not listen to and consider the parties’ arguments, the
court’s omission of any explanation for its chosen sentence
violates our established precedent. Accordingly, being mindful
that a sufficient explanation is necessary “to promote the
perception of fair sentencing” and “to allow for meaningful
appellate review,” Gall v. United States, 552 U.S. 38, 50
(2007), we vacate the sentence and remand for resentencing. *
*
Having found the district court’s revocation sentence to
be procedurally flawed, we have not considered its substantive
reasonableness. See Carter, 564 F.3d at 328 (“If, and only if,
we find the sentence procedurally reasonable can we consider the
(Continued)
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In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues. This
court requires that counsel inform Tate in writing of his right
to petition the Supreme Court of the United States for further
review. If Tate requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Tate. 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. The mandate shall issue forthwith.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED;
MANDATE TO ISSUE FORTHWITH
substantive reasonableness of the sentence.” (internal quotation
marks omitted)).
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