UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4094
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW WALLACE,
Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:10-cr-00152-AWA-TEM)
Argued: September 23, 2016 Decided: December 5, 2016
Before DUNCAN, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Andrew Curtis
Bosse, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee. ON BRIEF: Geremy C. Kamens, Acting Federal Public
Defender, Alexandria, Virginia, Richard J. Colgan, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Norfolk, Virginia, for Appellant. Dana J. Boente, United States
Attorney, Alexandria, Virginia, Darryl J. Mitchell, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After Andrew Wallace violated the terms of his supervised
release, the district court revoked his release and sentenced
him to the statutory maximum of sixty months’ imprisonment.
Wallace challenges the sentence on the grounds that it is
plainly unreasonable. 1 Finding no error, we affirm.
I.
In 1992, Wallace pleaded guilty to one count of being a
felon in possession of a firearm, two counts of armed robbery,
and one count of carrying a firearm during a crime of violence.
The district court found him to be an armed career criminal and
sentenced him to 240 months in prison, with three years of
supervised release. The terms of his supervised release
required Wallace to maintain a steady job, notify the probation
officer of any change of residence, and report any instances in
which he was arrested or questioned by law enforcement. Wallace
was released from prison on November 9, 2009, and his supervised
release began.
On November 15, 2010, Wallace’s probation officer filed a
petition to revoke his supervision after Wallace was arrested
and charged with two counts of sodomy by force and one count of
1On appeal, Wallace challenges only his sentence, not the
revocation of his supervised release.
2
rape. At the time of his arrest, Wallace was living in his
vehicle. A woman staying with Wallace in his vehicle accused
him of the sexual assault. Upon Wallace’s arrest, a search of
his vehicle yielded binoculars, heavy rope, a knit cap, gloves,
and three knives, which were considered as burglary tools. In
addition to the sexual assault crimes, the revocation petition
charged Wallace with possession of a dangerous weapon (that is,
the knives found in his vehicle) and failure to notify his
probation officer that he was unemployed.
The state court eventually dismissed the sodomy and rape
charges. In the later revocation of supervised release
proceeding, the district court determined that the dismissed
charges and dangerous weapon allegations were not supported by
probable cause. Because only the failure to notify of
unemployment, a minor violation, remained, the district court
dismissed the petition at the Government’s request.
On September 10, 2012, the probation officer filed another
petition to revoke Wallace’s supervised release. This petition
charged Wallace with committing two new criminal offenses:
indecent liberties and reckless driving. The revocation
petition alleged that while Wallace was babysitting a ten-year-
old girl, he walked into her bathroom while she was taking a
bath, and the girl covered herself with a washcloth. Wallace
requested that she remove the washcloth, and the girl refused.
3
When Wallace began to unzip his trousers, the girl screamed, and
Wallace left. Local law enforcement arrested Wallace and
charged him with indecent liberties with a minor. On November
18, 2014, the probation office filed an addendum to its
petition, informing the court that Wallace had entered a
conditional guilty plea and was convicted in state court of
indecent liberties with a child. The state court sentenced him
to five years in prison, with three years and two months
suspended, and three years of supervised probation.
On July 12, 2012, Wallace was convicted in state court of
driving eighty-five miles per hour in a fifty-five-mile–per-hour
zone. He was sentenced to 110 days’ imprisonment, with 105 days
suspended, and two years’ probation. Although Wallace appealed
that conviction, his appeal had been denied before the district
court’s revocation hearing.
The revocation petition also charged Wallace with failure
to notify the probation officer of a change in residence. On
June 18, 2012, Wallace informed his probation officer that he
had been evicted from his apartment and was residing at a local
rescue mission. On July 25th, local police informed the
probation officer that Wallace had not been at the mission since
July 7th. After being questioned by his probation officer,
Wallace stated that he was living in his car and explained that
4
he did not report the change in residence since he did not have
an actual address to report.
Finally, the petition alleged that Wallace had failed to
notify his probation officer of contact with law enforcement.
On July 13th, police were dispatched to a transit center after
receiving reports of a man offering women rides to their homes.
The police made contact with Wallace, who had a woman in his
vehicle. The officers reported that the woman appeared
frightened, positioning herself so that the officers were
between her and Wallace. Although Wallace denied offering rides
to women, the woman indicated that he was in fact attempting to
do so and that Wallace claimed he had given rides to other
women. Wallace claimed that he did not know he needed to notify
the probation office of this contact with police, although he
was later banned from the transit center for his inappropriate
conduct.
At the revocation hearing, Wallace admitted all the
allegations other than the indecent liberties charge, since it
was on appeal. 2 The district court found Wallace in violation of
the conditions of his supervised release and noted that, for
2 Wallace’s appeal, in which he only alleged his right to a
speedy trial was violated, has since been denied by both the
Court of Appeals of Virginia and the Supreme Court of Virginia.
See Wallace v. Commonwealth, 774 S.E.2d 482 (Va. Ct. App. 2015),
aff’d, No. 151296, 2016 WL 3135485 (Va. June 2, 2016).
5
purposes of the United States Sentencing Commission’s (“USSC”)
guidelines, his criminal history warranted a category of six,
and his most serious violation, the indecent liberties
conviction, was a grade A violation, garnering a policy
statement range of fifty-one to sixty-three months of
incarceration. In making a sentencing recommendation, the
Government discussed the prior dismissed petition, emphasizing
the “very serious” charges of rape and forcible sodomy. J.A.
41. The Government then moved on to the “very serious” and
“very disturbing” indecent liberties conviction, terming the
state court’s sentence for this charge “a disgrace.” J.A. 41-
42. This pattern of dangerous behavior led the Government to
request a sentence of at least forty-eight months.
Wallace disputed the categorization of the indecent
liberties conviction as a grade A violation, and the court
ordered the parties to submit briefs on the issue and adjourned
the hearing. The parties later stipulated that the indecent
liberties conviction was indeed a grade B violation, reducing
the policy statement range to twenty-one to twenty-seven months.
At the reconvened revocation hearing, the Government again
asked the court to consider the safety of the public and impose
a sentence above the policy statement range. Wallace informed
the court that he had obtained a civil judgment of $300,000
against his accuser on the dismissed rape and sodomy charges.
6
He explained that the only reason he pleaded guilty to the
indecent liberties charge is that he had been in jail for almost
two years at that point and essentially received a time-served
sentence. Wallace suggested that the state-supervised probation
rendered further federal supervision unnecessary. Finally, he
requested the court to impose a sentence between six and eight
months, well below the USSC’s policy statement range.
In announcing its decision, the district court discussed
the sentencing factors found in 18 U.S.C. § 3553(a), stating,
“Deterrence is a factor. The public is a factor. Correctional
treatment is a factor.” J.A. 64. The court reviewed the
sentencing report completed for Wallace’s robbery and weapon
convictions, noting his criminal record and family history. The
court briefly touched on his arrest for rape and sodomy and
discussed the knives and burglary tools discovered by the police
in their search of Wallace’s vehicle. The court went on to
recognize that the state dismissed the rape and sodomy charges
and Wallace had obtained a civil judgment against the accuser.
The district court also took into consideration Wallace’s
reckless driving conviction and failure to inform the probation
office about his change in residence and the incident of
harassment at the transit center from which he had been banned.
After this fairly extensive discussion of Wallace’s
violations of his supervised release, the court stated:
7
So it is creepy. So I hope you’re sincere in
your desire to get treatment. I’ll say that first.
I’m looking at the 3553(a) statutory factors. 21
to 27 months is not sufficient, in the Court’s view,
and, you know, the statutory max is 60. In light of
your criminal history category of six, the violent
charges that you [pleaded guilty to in 1992], and then
you’ve been under our supervision, but you’ve got
these flags which concern the Court.
So I’m looking at specific deterrence as it
pertains to you and protecting the public. Then I do
agree with [defense counsel] that you do not need any
more federal supervision in light of all the
supervision that you’re going to be getting via the
state.
So all that being said, I’m going to sentence you
to 60 months. You will be remanded to the custody of
the marshals. Then you will have no more federal
supervised release once you do that. And then we just
hope that you get well and hope you don’t commit any
other offenses that cause you to be returned back in a
jumper or handcuffs or a cage for the rest of your
days.
J.A. 68-69. Wallace filed a timely appeal. We have
jurisdiction over this appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
II.
The Court will uphold a revocation sentence “unless it
falls outside the statutory maximum or is otherwise plainly
unreasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th
Cir. 2015). 3 4 We first determine whether the sentence is
3
We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.
8
procedurally and substantively reasonable. United States v.
Wynn, 786 F.3d 339, 341 (4th Cir. 2015); see also United States
v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012) (instructing that
this analysis should follow the directions provided in Gall v.
United States, 552 U.S. 38 (2007)). A sentence is procedurally
unreasonable if the district court failed to explain its
sentence, neglected to consider the USSC’s suggested sentencing
range or the § 3553(a) sentencing factors when determining the
sentence, or contemplated an improper § 3553(a) factor. See
Gall, 552 U.S. at 51; Bennett, 698 F.3d at 200. In reviewing
for substantive reasonableness, the Court must “take into
account the totality of the circumstances, including the extent
of any variance from the [policy statement] range.” Gall, 552
U.S. at 51. If we find that the sentence is reasonable, the
analysis ends there. Wynn, 786 F.3d at 341. If the sentence is
unreasonable, the Court then determines whether it is plainly
unreasonable, that is, whether it “run[s] afoul of clearly
settled law.” United States v. Thompson, 595 F.3d 544, 548 (4th
Cir. 2010).
4The parties dispute whether we should review the sentence
under the “plain error” standard. Because the Court finds that
the sentence is proper under the more defendant-friendly
“plainly unreasonable” standard, it is unnecessary to determine
whether the “plain error” standard applies.
9
We are even more deferential to the district court’s
imposition of a revocation sentence than with the original
sentence. A district court is given “broad discretion to revoke
its previous sentence and impose a term of imprisonment up to
the statutory maximum.” United States v. Crudup, 461 F.3d 433,
439 (4th Cir. 2006); see also United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007) (stating that our reasonableness
“inquiry takes a more deferential appellate posture concerning
issues of fact and the exercise of discretion than
reasonableness review for guidelines sentences”). The USSC’s
suggested sentencing range for revocation is a non-binding
“policy statement” rather than a “guideline.” See U.S.
Sentencing Guidelines Manual § 7B1.4; Thompson, 595 F.3d at 546-
47; see also Moulden, 478 F.3d at 655. The district court has
“greater flexibility in imposing a sentence for . . . supervised
release violations than a guideline would allow.” Moulden, 478
F.3d at 655.
III.
Wallace argues that the sentence is procedurally
unreasonable because the district court impermissibly considered
a § 3553(a) factor not included in § 3583(e) and it failed to
provide an adequate explanation when imposing the sentence. We
address each contention in turn.
10
A.
18 U.S.C. § 3583 instructs that the district court must
consider certain factors found in § 3553(a) when imposing a
sentence upon revoking supervised release. These factors
include the defendant’s criminal history, the nature of the
criminal offense, and the need for specific deterrence and
protection of the public, among others. Compare 18 U.S.C.
§ 3583(e), with 18 U.S.C. § 3553(a). A court is not “expressly
prohibit[ed] . . . from referencing other relevant factors
omitted from the statute.” United States v. Webb, 738 F.3d 638,
641 (4th Cir. 2013). For example, “the factors listed in
§ 3553(a)(2)(A) are intertwined with the factors courts are
expressly authorized to consider under § 3583(e).” Id. The
mere “reference to the § 3553(a)(2)(A) sentencing
considerations, without more, [does not] automatically render a
revocation sentence unreasonable.” Id. at 642. Only when a
district court “impose[s] a revocation sentence based
predominately on the seriousness of the releasee’s violation or
the need for the sentence to promote respect for the law and
provide just punishment” will the Court conclude that the
sentence is procedurally unreasonable. Id.
Wallace maintains that the district court impermissibly
took the seriousness of the violations into account in
calculating his sentence. He points to the Government’s
11
extensive discussion of the indecent liberties conviction, its
characterization of the offense as “very serious,” and its
description of the state sentence as “a disgrace.” Wallace also
takes issue with the Government dwelling on the dismissed rape
and sodomy charges and the district court’s reference to those
charges at the sentencing hearing. Finally, Wallace challenges
the district court’s consideration of the transit center
incident, for which Wallace was never arrested or charged, and
the court calling Wallace’s actions “creepy.”
Wallace’s arguments are unavailing. The bulk of his
contentions regarding the indecent liberties conviction and the
dismissed rape and sodomy charges revolve around assertions the
Government made to the district court instead of the court’s own
statements. It is unclear how Wallace expects to impute the
Government’s averments to the district court’s reasoning, but we
are not willing to take the speculative leap required to make
that inference.
The district court clearly stated that a statutory maximum
sentence was warranted for specific deterrence and public
protection, two § 3553(a) factors it was permitted to consider.
The court did not mention the word “serious” other than to state
that it found Wallace “guilty of the serious violation” (in
comparison to the other violations) of indecent liberties for
the purposes of the sentencing hearing. J.A. 45.
12
Nor is it error that the court described the dismissed rape
and sodomy charges in discussing Wallace’s history. The
district court certainly had the authority to acknowledge the
events occurring between the beginning of Wallace’s supervised
release and the sentencing hearing, including those in the
dismissed petition. In addition to the dismissed charges, the
police found knives and other items constituting “burglary
tools,” according to the probation office, and the district
court was permitted to factor this into its sentencing
determination. There is no indication that the court based its
decision on the “seriousness” of the dismissed rape and sodomy
charges or considered them as a factor in arriving at its
sentencing decision. In any event, the district court cured any
possible error when it expressly recognized that the charges
were dropped and that Wallace had obtained a civil judgment
against the accuser.
Similarly, the district court did not impermissibly
consider the transit center event as the violation for failure
to inform the probation officer of contact with police. It was
appropriate for the district court to recount the details
surrounding that violation. Furthermore, although Wallace tries
to tie the “creepy” comment to the court’s transit center
discussion, it is clear from the comment’s position immediately
13
after the court’s recognition of the indecent liberties
conviction that it referred to Wallace’s conduct as a whole.
B.
The district court is required to “adequately explain” its
sentencing determination, regardless of whether it adopts the
USSC’s suggested sentence or makes an upward or downward
departure. Thompson, 595 F.3d at 547. “A court need not be as
detailed or specific when imposing a revocation sentence as it
must be when imposing a post-conviction sentence, but it still
must provide a statement of reasons for the sentence imposed.”
Id. The district court is not obligated to “robotically tick
through § 3553(a)’s every subsection.” Moulden, 478 F.3d at
657. The explanation need only be sufficient enough to allow us
to “effectively review the reasonableness of the sentence” and
assure us “that the sentencing court considered the § 3553(a)
factors with regard to the particular defendant before [it].”
Id.
Wallace argues that the district court’s explanation for
the statutory maximum sentence was insufficient. He also
contends that the district court erred when it failed to
consider a sentence somewhere between the policy statement range
and the statutory maximum.
While the district court’s sentencing explanation edges
tenuously close to being insufficient, we find it adequate. The
14
court explicitly considered the USSC’s policy statement range as
required. Then, after a detailed account of all of the
circumstances surrounding the charged violations, the court
expressed concern about the violations in conjunction with
Wallace’s criminal history. The district court sentenced
Wallace to the statutory maximum based on the § 3553(a) factors
of specific deterrence and public protection. While succinct,
the district court met the low bar of reasonableness that
applies to revocation of supervised release. The brevity of the
district court’s analysis, although not ideal, does not require
vacation and remand for resentencing.
Our holding is not inconsistent with the decision in
Thompson. There, the Court vacated Thompson’s sentence and
remanded for a new sentencing proceeding after the district
court sentenced him to the policy statement maximum term. See
Thompson, 595 F.3d at 546. The district court had not applied
the § 3553(a) factors and only discussed “Thompson’s history,
conduct, and characteristics” after announcing that sentence and
in the context of whether he should be allowed to self-report to
prison. Id. We held that the district court erred because it
did not “giv[e] any indication of its reasons” for its sentence.
15
Id. at 547. That is not the case here, where the district court
provided sufficient, albeit brief, support for its decision. 5
IV.
For the foregoing reasons, the order of the district court
is
AFFIRMED.
5 Had this been an appeal from an initial sentence, we would
perhaps be inclined to decide differently. However, in view of
the higher deference afforded to the district court in
revocation proceedings, and that the court’s sentencing
statements were well in excess of the deficiency found in
Thompson, we conclude that the district court explained its
decision sufficiently.
16