UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4583
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN MATTHEW GRISSOM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:12-cr-00940-HMH-19)
Submitted: June 30, 2016 Decided: July 6, 2016
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Lora Blanchard, 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Unpublished opinions are not binding precedent in this circuit.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:
Kevin Matthew Grissom appeals the district court’s judgment
revoking his term of supervised release and sentencing him to 24
months’ imprisonment. Counsel initially filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court abused its discretion by revoking Grissom’s
supervised release and in imposing sentence. After conducting
our review pursuant to Anders, we sought supplemental briefing
on two issues: (1) whether defense counsel’s statement at the
revocation hearing, and Grissom’s agreement thereto, that the
defense admitted for the purpose of that proceeding that the
Government could establish the alleged supervised release
violations, is sufficient to sustain the revocation of Grissom’s
supervised release; and (2) whether the district court imposed a
plainly unreasonable sentence by failing to explain the sentence
it selected for this defendant. Having reviewed the parties’
arguments on these issues, we affirm the revocation of Grissom’s
supervised release, but conclude that the district court’s
explanation was insufficient, rendering Grissom’s sentence
plainly procedurally unreasonable. Thus, we vacate the sentence
and remand for resentencing.
We generally review for abuse of discretion a district
court’s judgment revoking supervised release and review factual
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findings in this context for clear error. United States v.
Padgett, 788 F.3d 370, 373 (4th Cir.), cert. denied, 136 S. Ct.
494 (2015). The district court need only find a violation of a
condition of supervised release by a preponderance of the
evidence. 18 U.S.C. § 3583(e)(3) (2012); Padgett, 788 F.3d at
374. Because Grissom did not object in the district court to
the revocation of his supervised release on the basis identified
in our supplemental briefing order, our review of this issue is
limited to plain error. United States v. Olano, 507 U.S. 725,
731–32 (1993).
To satisfy the plain error standard, Grissom must show that
there was an error that was “plain (i.e., clear or obvious),”
and that this error affects his substantial rights. United
States v. Lemon, 777 F.3d 170, 172 (4th Cir. 2015) (internal
quotation marks omitted). This court will acknowledge a plain
error only when all of these conditions are satisfied and we
find that doing so is necessary to prevent “a miscarriage of
justice” or to ensure “the fairness, integrity or public
reputation of judicial proceedings.” United States v.
Whitfield, 695 F.3d 288, 303 (4th Cir. 2012) (internal quotation
marks omitted).
The transcript of Grissom’s revocation hearing reveals
Grissom’s express adoption of counsel’s concession that the
Government’s evidence would establish the alleged violations and
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Grissom’s personal admission to using drugs while on supervised
release. Given the low standard for establishing a supervised
release violation, we conclude that, on this record, Grissom
cannot satisfy the high burden of establishing that the district
court committed plain error in revoking his supervised release.
Turning then to Grissom’s sentence, we first recognize the
“broad discretion” a district court has when selecting the
sentence to impose upon revoking a defendant’s previously
imposed term of supervised release. United States v. Webb, 738
F.3d 638, 640 (4th Cir. 2013). Accordingly, in examining a
revocation sentence, this court “takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for guidelines 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 unreasonable.” United States v.
Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In reviewing a
revocation sentence, this court 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.
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A revocation sentence is procedurally reasonable if, among
other factors, the district court provides a sufficient
explanation for its chosen sentence, although this explanation
“need not be as detailed or specific” as is required for an
original sentence. United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010). In evaluating this factor, this court
considers the district court’s sentencing analysis, including
its response to any nonfrivolous arguments for a variant
sentence and its explanation for the selected sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Because
defense counsel based her request for a downward variant
sentence on the sentencing factors set forth in 18 U.S.C.
§ 3553(a) (2012), Grissom has preserved such a claim for appeal.
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).
In explaining its sentence, the district court is not
required to “robotically tick through § 3553(a)’s every
subsection,” Moulden, 478 F.3d at 657 (internal quotation marks
omitted), but “a district court may not simply impose [a
revocation] sentence without giving any indication of its
reasons for doing so,” Thompson, 595 F.3d at 547. An adequate
explanation is necessary “to promote the perception of fair
sentencing” and to permit “meaningful appellate review.” Gall
v. United States, 552 U.S. 38, 50 (2007).
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With these well-settled principles in mind, and despite the
sparse requirements for a district court’s explanation of a
revocation sentence, we conclude that, in this case, the court
did not adequately explain Grissom’s sentence. In fact, the
district court did not articulate any reasons for the sentence
it selected for Grissom, in contravention of the law of this
Circuit. See Thompson, 595 F.3d at 547. The Government points
out in its supplemental brief that the court’s colloquy with
Grissom suggests that the court was concerned with Grissom’s
continued drug use and failure to fulfill his restitution
obligation and abide by the terms of his release. See id.
(noting that a district court’s reasoning “may be clear from
context, including the court’s statements to the defendant
throughout the sentencing hearing” (citation omitted)). While
the record supports a finding that the district court heard
defense counsel’s arguments in mitigation and Grissom’s
explanation for his violative conduct, the record is silent as
to why the court rejected those contentions as reasons for a
downward variant sentence. The court also neglected to offer
any on-the-record analysis of the § 3553(a) factors it found to
be most relevant in this revocation proceeding. Being ever
mindful of Gall’s mandate that each federal sentence must be
adequately explained, see Gall, 552 U.S. at 50, we conclude that
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the court’s failure to explain its chosen sentence renders
Grissom’s sentence procedurally unreasonable.
We further conclude that Grissom’s sentence is plainly
unreasonable because the requirement to provide an adequate
explanation for a defendant’s revocation sentence is a “clearly
settled” requirement. Thompson, 595 F.3d at 548. Because, on
this record, we can do nothing more than guess as to the reasons
for the selected sentence, we are constrained to vacate
Grissom’s sentence and remand this case for resentencing. See,
e.g., United States v. Townes, 629 F. App’x 521, 525 (4th Cir.
2015) (No. 14-4762) (argued but unpublished) (opining that “a
revocation sentence cannot be deemed procedurally reasonable
when this Court can only guess as to the district court’s actual
reasoning”). *
In accordance with Anders, we have reviewed the record and
found no other meritorious issues for appeal. This court
requires that counsel inform Grissom in writing of the right to
petition the Supreme Court of the United States for further
review. If Grissom requests that a petition be filed, but
*Because we concluded that Grissom’s revocation sentence is
not free of significant procedural errors, we have not
considered the substantive reasonableness of the sentence. See
Carter, 564 F.3d at 328 (“If, and only if, we find the sentence
procedurally reasonable can we consider the substantive
reasonableness of the sentence.” (internal quotation marks
omitted)).
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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 Grissom. 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 IN PART;
VACATED AND REMANDED IN PART
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