UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4762
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ONREY TOWNES,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00213-F-4)
Argued: October 29, 2015 Decided: November 16, 2015
Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion. Judge
Niemeyer wrote a dissenting opinion.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Onrey Townes appeals the twenty-one-month sentence the
district court imposed upon the revocation of his supervised
release. Townes challenges the sentence as procedurally
unreasonable, arguing that the district court committed plain
error in imposing the sentence absent appropriate explanation.
For the reasons that follow, we vacate the judgment and remand
for resentencing.
I.
Townes first appeared before the district court for
sentencing on April 24, 2012, after pleading guilty to
possessing a stolen firearm and aiding and abetting in violation
of 18 U.S.C. §§ 2, 922(j), 924. In accordance with the terms of
his plea agreement, the district court sentenced Townes to
twelve months and one day in prison and three years of
supervised release. Townes began his term of supervised release
on July 3, 2012.
On March 26, 2014, United States Probation Officer Dewayne
Smith petitioned for the revocation of Townes’s supervised
release, asserting that Townes had violated the terms of his
supervised release in two respects. First, Smith alleged that
Townes had engaged in recent criminal conduct. Smith explained
that, during the early morning hours of March 15, 2014, Townes
entered a home through a bathroom window, woke a young female
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resident, and fled when the girl called for her parents. Smith
also noted that Townes attempted to gain access to a second
residence minutes later and that Townes only abandoned his
efforts when one of the people inside the home discovered him.
In response to these incidents, the Wilson County Police
Department charged Townes with felony first degree burglary and
attempted breaking and entering. Second, Smith reported that
Townes had violated the terms of his supervised release by
missing three mental health appointments.
The district court held a hearing on the petition for
revocation on September 29, 2014. During the hearing, Townes
neither admitted nor denied the alleged criminal activity. As
to the allegations regarding his failure to participate in a
mental health program as directed, Townes conceded that his
absences violated the terms of his supervised release. Townes
emphasized, however, that his absences were not the result of
disinterest in mental health support. Townes explained that
each absence was due to incomplete information or scheduling
conflicts and emphasized his desire for future mental health
counseling.
The Government made a proffer as to the purported criminal
activity, eliciting testimony from the police officers who had
responded to the incidents. After hearing from both officers,
the district court declared that it found as a matter of fact
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that Townes had violated the terms of his supervised release by
engaging in criminal conduct—both burglary and attempted
breaking and entering—and by failing to participate in a mental
health program as directed. The district court then explained
that it had “considered the policy statements on revocation
contained in Chapter Seven of the Sentencing Guidelines as well
as [the] relevant factors listed in 18 United States Code
3553(a).” J.A. 21. Prior to imposing the sentence, the
district court afforded both parties an opportunity to address
the court.
Townes’s attorney argued first and offered the following
factors in mitigation of Townes’s conduct: (1) Townes’s youth;
(2) his documented struggles with bipolar disorder and
schizophrenia; (3) his recent engagement and commitment to
helping raise his two three-month-old sons; (4) his abstention
from drug use; (5) his work history and current job prospects;
and (6) his plans to earn his GED and commercial driver’s
license. Defense counsel concluded by asking the district court
for a sentence below the advisory range provided under the U.S.
Sentencing Guidelines Manual’s policy table applicable to
revocations. The district court did not explicitly address
Townes’s arguments in favor of a below-the-guidelines sentence
at that time. Instead, prior to seeking final comments from the
Government, the district court explained that Townes’s conduct
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constituted a “most serious violation” and explained that,
because Townes fell within criminal history category II,
Townes’s advisory range of imprisonment was fifteen to twenty-
one months.
The Government responded to Townes’s request for a sentence
below the advisory range by arguing in support of an above-
guidelines twenty-four-month sentence—the applicable statutory
maximum. As grounds for a sentence above the advisory range,
the Government explained that, immediately after posting bond in
Wilson County, Townes had returned to one of the subject
residences and shouted threats at the victims. The Government
also emphasized that Townes’s initial federal conviction was for
the possession of a stolen firearm and that Townes had come into
possession of the firearm following a 2010 residential break-in.
In sum, the Government argued that Townes had failed to learn
from his initial term of imprisonment and that his recent
criminal conduct evidenced dangerous and escalating behavior.
After both parties presented their arguments, the district
court reasserted its finding that Townes had violated the terms
of his supervised release. The district court then revoked
Townes’s supervised release and imposed the sentence as follows:
After weighing all the factors, it’s ordered and
adjudged that the supervision term heretofore granted
be revoked. The Defendant is ordered committed to the
custody of the Bureau of Prisons or its authorized
representative for a period of 21 months. The court
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recommends that while incarcerated he receive mental
health treatment and he participate in the intensive
drug treatment program.
J.A. 24-25. This timely appeal followed.
II.
A.
A district court is afforded broad discretion when imposing
a sentence upon the revocation of supervised release. United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). A revocation
sentence will be affirmed so long as “it is within the statutory
maximum and is not ‘plainly unreasonable.’” Id. (quoting United
States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006)).
To determine if a sentence is plainly unreasonable, we
conduct a two-step inquiry. See Crudup, 461 F.3d at 438-39.
First, this Court must determine whether the sentence is
“unreasonable at all.” United States v. Thompson, 595 F.3d 544,
546 (4th Cir. 2010). A sentence can be either procedurally or
substantively unreasonable. Webb, 738 F.3d at 640. A sentence
will be deemed procedurally unreasonable if the judge failed to
consider the Chapter Seven policy statements or pertinent 18
U.S.C. § 3553(a) sentencing factors or if the judge failed to
“provide a statement of reasons for the sentence imposed.”
Thompson, 595 F.3d at 547 (quoting United States v. Moulden, 478
F.3d 652, 657 (4th Cir. 2007)); Crudup, 461 F.3d at 440. A
revocation sentence is substantively unreasonable if the
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district court did not rely on a proper basis in rendering its
sentence. Crudup, 461 F.3d at 440.
Only if a sentence is procedurally or substantively
unreasonable do we proceed to the second step: determining
whether the sentence is “plainly unreasonable.” Id. at 439. A
sentence is plainly unreasonable if it runs “afoul of clearly
settled law.” Thompson, 595 F.3d at 548.
B.
Townes challenges his revocation sentence as procedurally
unreasonable. He contends that the district court committed
plain procedural error when it failed to address his arguments
in favor of a sentence below the advisory range and failed to
explain why it imposed the sentence rendered. We agree.
While a district court “need not be as detailed or specific
when imposing a revocation sentence as it must be when imposing
a post-conviction sentence,” it must give some explanation or
indication of its reasoning. See id. at 547. As this Court
explained in Thompson, “to hold otherwise, district courts could
effectively thwart appellate review of any within-range
revocation sentences they impose.” Id.
The Government argues that the district court shed
sufficient light on its reasoning when it noted, prior to
hearing argument from Townes’s counsel, that it “considered the
policy statements on revocation contained in Chapter Seven of
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the Sentencing Guidelines as well as relevant factors listed in
18 United States Code 3553(a).” The Government further contends
that, between the district court’s declaration that Townes’s
conduct constituted a “most serious Grade A violation” and its
recommendation that Townes receive mental health treatment while
incarcerated, the district court adequately explained its
decision to deny Townes’s request for a sentence below the
advisory range.
We are unpersuaded by the Government’s contentions. Were
we to agree with the Government, we would be reaching the type
of “speculative conclusion” we cautioned against in Thompson.
Id. Most assuredly, a district court is not required to
“robotically tick through § 3553(a)’s every subsection.”
Moulden, 478 F.3d at 657 (quoting, United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006)). However, by merely stating that
it had “weigh[ed] all the factors,” the district court left this
Court to engage in wide-ranging speculation as to how the policy
statements and § 3553(a) factors balanced in light of the
opposing arguments offered by defense counsel and the
Government. This is not to suggest that the district court did
not adequately take the parties’ arguments into consideration
when formulating Townes’s sentence; rather, it means that
because a sufficient explanation is essential to the “perception
of fair sentencing” and “meaningful appellate review,” Gall v.
9
United States, 552 U.S. 38, 50 (2007), a revocation sentence
cannot be deemed procedurally reasonable when this Court can
only guess as to the district court’s actual reasoning.
Notably, the Government conceded at oral argument that the
explanation provided by the district court would not pass muster
if this were a direct appeal from an original sentence. Given
the paucity of reasoning explaining the sentence in this record,
we find no support in our precedents for the manner in which the
Government would parse the minimal burden on the district court
to explain the reasons for its sentence.
C.
Because we find the sentence procedurally unreasonable, we
must now consider whether it was plainly so. Because this
Circuit has clearly articulated that a district court is
“obligat[ed] to provide some basis for appellate review when
imposing a revocation sentence, however minimal that basis may
be,” Thompson, 595 F.3d at 548-49, the district court’s failure
to offer any explanation for imposing the top-of-the-guidelines
sentence rendered, in light of counsel’s presentations, runs
afoul of clear circuit precedent. Accordingly, we conclude that
the sentence is plainly unreasonable.
D.
Finally, despite the Government’s arguments to the
contrary, we are unable to conclude that the district court’s
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failure to issue a reasoned sentence was harmless. “For a
procedural sentencing error to be harmless, the government must
prove that the error did not have a ‘substantial and injurious
effect or influence on the result.’” Id. at 548 (quoting United
States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)). While the
Government argues that the mitigating evidence offered by
Townes’s counsel was relatively weak in light of its evidence
demonstrating escalating and dangerous behavior, we cannot
presume that the district court would not have rendered a
different sentence had it explicitly considered the arguments of
Townes’s counsel. As an example, Townes’s counsel emphasized to
the district court that Townes was “not a drug user” and had not
produced a positive drug test throughout his time (more than
eighteen months) on supervised release. Despite this evidence,
the district court recommended that Townes undergo intensive
drug treatment while incarcerated. Reflecting on this potential
incongruity—and without any explanation to the contrary—it is
reasonable to conclude that the district court entirely
overlooked this non-frivolous argument offered in mitigation of
Townes’s conduct. Because the district court did not adequately
explain its basis for rendering the sentence chosen and Townes
presented non-frivolous arguments that, if explicitly
considered, could have resulted in a different sentence, we are
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unable to find that the procedural sentencing error was
harmless.
III.
For the foregoing reasons, the judgment is vacated and the
case is remanded to the district court for a new sentencing
hearing. We deny Townes’s motions to file a pro se supplemental
brief as moot.
VACATED AND REMANDED
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NIEMEYER, Circuit Judge, dissenting:
After revoking Onrey Townes’ supervised release because he
had committed two crimes, at least one of which was a “crime of
violence,” and because he had failed to participate in mental
health treatment, the district court imposed a sentence of 21
months’ imprisonment, within the Sentencing Guidelines’ range.
The majority opinion now vacates that sentence as plainly
unreasonable because the district court did not adequately
explain its reasons for imposing it. The majority concludes
that, by not saying enough, the district court “thwart[ed]” our
ability to review the sentence, leaving us to make a
“speculative conclusion” about the reasons for it.
On this record, the majority opinion is unfathomable and
leads only to needless procedural churning. As we have said, we
should be “hard-pressed to find any explanation for within-
range, revocation sentences insufficient given the amount of
deference we afford district courts when imposing these
sentences.” United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010) (emphasis added). Even so, on this record, we know
exactly why the district court imposed the sentence. I would
affirm.
As part of his sentence for possessing a stolen firearm and
aiding and abetting, in violation of 18 U.S.C. §§ 922(j), 924,
and 2, Townes was given a three-year term of supervised release,
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which included conditions that he not commit another crime and
that he participate in a mental health treatment program. On
the motion of Townes’ probation officer, the district court
revoked Townes’ supervised release for violation of these
conditions. The court found that Townes (1) committed “felony
first degree burglary” of a residence; (2) committed another
crime of “attempted breaking and entering of a building”; and
(3) “fail[ed] to participate as directed by a probation officer
in a mental health program.” The district court calculated the
Sentencing Guidelines’ recommended range to be 15 to 21 months’
imprisonment.
Arguing for a downward departure from that range, Townes’
counsel pointed out:
Mr. Townes is 22 years old. He’s been living with his
sister in Wilson. He’s engaged. He has two three-
month-old boys. He’s excited about being a father and
as soon as he can get this behind him he wants to get
married and help raise those children.
He was diagnosed with bipolar and schizophrenia when
he was a child, Your Honor. That’s documented in his
presentence report and he’s struggled with this for
years.
He does want the court to know that he wants mental
health counseling. That the reason he missed those
appointments, it wasn’t because he did not want to go
or because he did not feel that he needed it. He was
-- Your Honor, he got confused.
Counsel also noted that Townes had been employed in some work,
that he had other “job possibilities lined up,” and that he
planned to “get his GED.”
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The government argued for an upward departure of 24 months’
imprisonment, pointing out:
[W]hen [Townes] bonded out on the state charge for the
burglary[,] . . . he went back to the same victims’
house and shouted at them -- shouted threats at them
from across the street.
I would like the court to also know that his federal
conviction related to possession of stolen firearms as
a result of a residential break-in.
It does not appear that his behavior has been deterred
in the least. He had a break-in for which he was
charged for the federal conviction and admitted to
another break-in in Wilson County.
These two break-ins happened, you know, just minutes
apart in Wilson, and we believe that he poses a danger
to the community and shows escalating behavior, bad
behavior, criminal behavior by his actions on March
the 15th.
The district court rejected each party’s request for a
departure from the Guidelines’ recommended range, sentencing
Townes to 21 months’ imprisonment, the top of the recommended
range. The court explained:
The court has considered the policy statements on
revocation contained in Chapter Seven of the
Sentencing Guidelines as well as relevant factors
listed in 18 United States Code 3553(a).
* * *
Well, it’s a grade -- most serious grade violation is
A. ∗
∗ The Sentencing Guidelines provide that a Grade A violation
involves “conduct constituting (A) a federal, state, or local
offense punishable by a term of imprisonment exceeding one year
that (i) is a crime of violence . . . .” U.S.S.G.
(Continued)
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* * *
Well, the court finds that he’s violated the terms of
the judgment by criminal conduct as I’ve indicated,
felony burglary and attempted break-in.
After weighing all the factors, it’s ordered and
adjudged that the supervision term heretofore granted
be revoked. The defendant is ordered committed to the
custody of the Bureau of Prisons or its authorized
representative for a period of 21 months.
The court recommends that while incarcerated [Townes]
receive mental health treatment and he participate in
the intensive drug treatment program.
It is difficult to conceive of what more the district court
could have said in the context of this particular sentencing
hearing. After hearing the evidence and the arguments, the
court explained that Townes’ violation was the “most serious”
recognized by the Sentencing Guidelines -- a Grade A
violation -- and that Townes had a mental health problem that
needed treatment, explicitly recommending that he receive
treatment during his sentence. The court rejected Townes’
request for a downward departure, obviously because of the
seriousness of the violation, and rejected the government’s
request for an upward departure, obviously recognizing some of
the positive points presented by Townes’ counsel. This was
further evidenced by the court’s concluding note that, “if
§ 7B1.1(a)(1); see also id. § 7B1.1 cmt. n.2 (explaining the
meaning of “crime of violence” by reference to U.S.S.G. § 4B1.2,
which lists “burglary of a dwelling” as a crime of violence).
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[Townes] comes back, . . . there won’t be much sympathy for
him,” implying some level of sympathy with the within-range
sentence it imposed.
This record is not so vacant as to leave us at a loss as to
why the court imposed the 21-month sentence. And certainly, it
is more than adequate when considering the standard that governs
our review of a district court’s decision to impose a revocation
sentence within the Guidelines’ recommended range. In those
circumstances, as already noted, we should be “hard-pressed to
find any explanation . . . insufficient.” Thompson, 595 F.3d at
547. In addition, we have recognized that a formal explanation
made directly in connection with the imposition of a sentence is
not required when some explanation “may be clear from the
context.” Id. Only if the district court fails to “giv[e] any
indication of its reasons” for the sentence or if the context
fails to illuminate those reasons, id., should we deem the
court’s explanation “plainly unreasonable” and thus
insufficient, see United States v. Crudup, 461 F.3d 433, 437
(4th Cir. 2006).
I can “see no reason to direct a remand that would serve no
purpose.” United States v. Bennett, 698 F.3d 194, 195 (4th Cir.
2012). I would affirm.
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