UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4194
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAMON KEYON JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:97-cr-00178-NCT-1)
Submitted: January 20, 2015 Decided: February 5, 2015
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Harry L. Hobgood, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damon Keyon Jones appeals the district court’s
judgment revoking his supervised release and sentencing him to
fifty-four months’ imprisonment. On appeal, Jones argues that
his sentence is plainly unreasonable. We vacate Jones’ sentence
and remand for resentencing.
This court will affirm a sentence imposed after
revocation of supervised release “if it is within the statutory
maximum and is not ‘plainly unreasonable.’” United States v.
Webb, 738 F.3d 638, 640 (4th Cir. 2013) (quoting United
States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006)). When
reviewing whether a revocation sentence is plainly unreasonable,
we first assess the sentence for unreasonableness, “follow[ing]
generally the procedural and substantive considerations that we
employ in our review of original sentences.” Crudup, 461 F.3d
at 438. A supervised release revocation sentence is
procedurally reasonable if the district court considers the
Chapter Seven advisory policy statement range and the 18 U.S.C.
§ 3553(a) (2012) factors applicable to supervised release
revocation. See 18 U.S.C. § 3583(e) (2012); Crudup, 461 F.3d at
439.
Here, although the district court considered
applicable § 3553(a) factors, it failed to calculate and
2
indicate consideration of the applicable policy statement range. 1
We therefore conclude that Jones’ sentence is procedurally
unreasonable.
Having found the sentence unreasonable, we assess next
whether it is plainly unreasonable. “To determine whether a
sentence is plainly unreasonable, this Court looks to the
definition of ‘plain’ used in plain-error analysis.” United
States v. Thompson, 595 F.3d 544, 547-48 (4th Cir. 2010). “For
a sentence to be plainly unreasonable, . . . it must run afoul
of clearly settled law.” Id. at 548.
Because Jones did not preserve this claim for
appellate review, our review is for plain error. See Fed. R.
Crim. P. 52(b). To establish plain error, Jones must
demonstrate that (1) the district court committed an error;
(2) the error was plain; and (3) the error affected his
substantial rights. Henderson v. United States, 133 S. Ct.
1121, 1126 (2013). Even if these requirements are met, however,
this court will “exercise [its] discretion to correct the error
only if it seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v.
1
We reject as unsupported by the record the Government’s
argument to the contrary.
3
Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation
marks omitted).
As stated, we recognize a sentencing error and find it
to be plainly unreasonable because it runs afoul of clearly
established law. See United States v. Moulden, 478 F.3d 652,
656 (4th Cir. 2007); Crudup, 461 F.3d at 439. Additionally,
because the sentence imposed by the district court was well
above the advisory policy statement range calculated by the
probation officer, Jones’ substantial rights were affected by
the error; had the district court calculated and considered the
policy statement range, it might have given Jones a lower prison
term. See Thompson, 595 F.3d at 548. Further, we choose to
exercise our discretion to notice the error because the district
court’s failure to calculate and consider the policy statement
range affected the fairness of the proceeding.
Accordingly, we vacate Jones’ revocation sentence for
a procedural sentencing error and remand for resentencing. 2 We
dispense with oral argument because the facts and legal
2
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 based on
its failure to calculate and consider the policy statement
range.
4
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
5