United States v. Bryan Tate

UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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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