United States v. Javaad Fisher

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5191

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAVAAD FISHER, a/k/a Lover Butt,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:03-cr-00394-JRS-10)

Argued: February 1, 2013 Decided: March 15, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. Judge
Shedd wrote a dissenting opinion.

ARGUED: Elizabeth W. Hanes, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Roderick Charles
Young, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, Caroline S. Platt, Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

In December 2003, Appellant Javaad Fisher pleaded

guilty to one count of conspiracy to possess with intent to

distribute cocaine base in violation of 21 U.S.C. § 846 (2006).

Thereafter, he was sentenced to 188 months imprisonment to be

followed by a five year term of supervised release. Following

the completion of his term of imprisonment, Appellant was twice

found to be in violation of the conditions of his supervised

release. As a result, his term of supervised release was

revoked twice, once in November 2010 and again in November 2011.

Appellant’s first revocation sentence was for a term of six

months imprisonment to be followed by the remainder of his

original term of supervised release. Appellant’s second

revocation sentence was for a term of 30 months imprisonment

with no ensuing supervised release.

Appellant appeals his second revocation sentence,

arguing that it was procedurally unreasonable because the

district judge failed to provide an individualized explanation

for the sentence. We agree. Accordingly, we vacate Appellant’s

revocation sentence and remand to the district court for re-

sentencing.

I.

In late 2003, Appellant was indicted along with

several other members of the Petersburg, Virginia-based “Third

2
Ward Gang” in the United States District Court for the Eastern

District of Virginia. On December 16, 2003, Appellant pleaded

guilty to conspiracy to possess with intent to distribute 50

grams or more of cocaine base in violation of 21 U.S.C. § 846

(2006). On March 17, 2004, Appellant was sentenced on that

conviction to 188 months imprisonment with five years of

supervised release to follow.

One year later, on March 17, 2005, the Government

filed a motion requesting that the district court reduce

Appellant’s sentence based on his substantial assistance in

another prosecution. See Fed. R. Crim. P. 35. Accordingly, on

April 5, 2005, the district court entered an order reducing

Appellant’s sentence from 188 months imprisonment to 84 months

imprisonment.

Upon successful completion of his term of

imprisonment, Appellant began to serve his term of supervised

release on October 2, 2009. On November 1, 2010, Appellant’s

probation officer filed a petition alleging Appellant violated

the terms of his supervised release by (1) failing to follow

instructions of the probation officer; and (2) testing positive

for both marijuana and cocaine. The petition recommended a

revocation sentencing range of six to 12 months imprisonment

3
with three years of supervised release to follow and a statutory

maximum sentence of 60 months imprisonment. 1

On December 6, 2010, Appellant pleaded guilty to the

alleged supervision violations. At the revocation hearing,

Appellant argued for a sentence of three months imprisonment

because (1) he had a documented substance abuse problem which

made it difficult for him to comply with the terms of his

supervised release; (2) he had successfully completed a job

training program for data cabling; and (3) he had expressed

interest in attending an in-patient drug treatment program.

In response, the Government argued that Appellant (1)

did not actively participate in the drug treatment program; (2)

denied that he had a drug problem; (3) failed to follow the

probation officer’s instructions by failing to find a job; and

(4) had previously been accorded leniency through the Rule 35

reduction to his original sentence.

1
Specifically, Appellant’s original offense of conviction,
conspiracy to possess with intent to distribute 50 grams or more
of cocaine base, is a Class A Felony. Thus, Appellant’s
statutory maximum revocation sentence was 60 months
imprisonment. See 18 U.S.C. § 3583(e)(3).

Additionally, Appellant’s criminal history category was IV.
This, coupled with the fact that all of his supervised release
violations were “Grade C” violations, resulted in a sentencing
range of six to 12 months imprisonment. See U.S.S.G.
§ 7B1.4(a).

4
 After hearing these arguments, the district court

sentenced Appellant to six months imprisonment to be followed by

the remainder of his term of supervised release. In so doing,

the district court indicated:

Because of this violation, the Court will sentence Mr.
Fisher to a period of incarceration of six months, and
then there will – supervised release will continue
following this period of incarceration. Mr. Fisher,
like the prosecutor indicated, normally, you know, I
would be giving you a sentence of five years instead
of six months. But I’m going to give you an
opportunity to try some drug treatment and see if the
Probation Officer can work with you to get your
problems solved. But you have to have some
consequences for violating the conditions of your
supervised release, and that will be the term of
incarceration. As I said, following that, there will
be supervised release, and we will make efforts to try
to deal with your drug problem. But understand, if
that doesn’t work, if the Probation Officer brings you
back in here, I won’t have any choice but to send you
to jail, and for a long time. So I’m trying to give
you some opportunity.

J.A. 33-34. 2

After Appellant served the six month term of

imprisonment, his term of supervised release resumed on June 8,

2011. On November 1, 2011, Appellant’s probation officer filed

a second revocation petition, alleging Appellant had again

violated the terms of his supervised release by (1) driving with

a suspended license; (2) failing to follow the probation

2
Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.

5
officer’s instructions to file periodic employment search forms;

and (3) using marijuana. Again, Appellant’s revocation

sentencing range was six to 12 months imprisonment, this time

with a statutory maximum sentence of 54 months imprisonment. 3

On November 30, 2011, Appellant appeared before the

district court and pleaded guilty to the latter two violations. 4

The Government argued that Appellant should receive the

statutory maximum sentence of 54 months imprisonment. In

support, the Government argued that Appellant had received

several “breaks” from the court and, therefore, had exhausted

all of his chances. J.A. 44. Specifically, the Government

noted (1) the fact that Appellant had initially been permitted

to plead guilty to a drug charge rather than the more severe

racketeering charge; (2) the 50% sentence reduction Appellant

received for providing substantial assistance in another

investigation; and (3) the fact that Appellant received the

3
Because the second round of supervision violations again
involved Grade C violations, Appellant’s revocation sentencing
range was the same. However, because Appellant had already
served six months imprisonment on the initial revocation, his
statutory maximum sentence was reduced to 54 months
imprisonment. See 18 U.S.C. § 3583(e)(3).
4
Appellant had been charged with driving on a suspended
license in Virginia between the first and second revocation
hearings. However, prior to the second revocation hearing, the
state prosecutor voluntarily dismissed that charge.
Accordingly, the Government elected not to pursue it as a basis
for supervised release revocation.

6
lowest possible Guidelines sentence for his initial supervised

release violation.

In response, Appellant agreed that supervised release

was not working for him but disagreed with the Government’s

proposed sentence. In support of a lower sentence, Appellant

argued (1) his original sentence reduction was not a “break”

because, to earn that reduction, he had to testify at the trial

of five other defendants, placing himself and his family at risk

of harm; (2) his continued inability to pass a drug test was

based on his documented history of drug addiction but, at the

time of the revocation, he was actively participating in a drug

treatment program; (3) his alleged failure to file employment

search reports was merely a technical violation because he was

actively seeking a job and had obtained a handyman license; and

(4) the fact that he did not have access to reliable

transportation greatly impeded his job search.

Thus, Appellant argued, “a sentence of the statutory

maximum doesn’t reflect the conduct that he brings to this

Court[,]” J.A. 46, and, therefore, he requested that the

district court impose a sentence of 12 months and one day.

Additionally, Appellant himself made a statement to the court,

noting that, although he was still addicted to drugs, he had

left his “criminal life behind” and wanted to become a good

father to his young daughter. J.A. 46-47.

7
 After the parties had completed their arguments, the

court pronounced its sentence, stating only:

All right, the supervised release will be revoked
pursuant to [Appellant’s] plea to the conduct that was
alleged. And the Court will impose the following
sentence: A sentence of 30 months incarceration
without any supervised release to follow. I think we
have done all that we can do for Mr. Fisher.

J.A. 47. Appellant timely noted an appeal.

On appeal, Appellant argues that the district court

procedurally erred by failing to provide a particularized

explanation for the sentence it chose. The Government disputes

this contention, arguing that, in combination, the district

court’s statements at both of Appellant’s revocation hearings

made the reasons underlying the 30 month sentence sufficiently

clear.

II.

We will affirm a sentence imposed after a revocation

of supervised release unless that sentence is plainly

unreasonable. See United States v. Crudup, 461 F.3d 433, 439-40

(4th Cir. 2006). In making this determination, we must first

determine whether the sentence is reasonable. See id. at 438.

This inquiry parallels ordinary reasonableness review with some

modification. See United States v. Moulden, 478 F.3d 652, 656

(4th Cir. 2007) (“This initial inquiry takes a more ‘deferential

appellate posture concerning issues of fact and the exercise of

8
discretion’ than reasonableness review for guidelines

sentences.” (quoting Crudup, 461 F.3d at 439)). 5

Only if we determine that a sentence is unreasonable

do we determine whether it was “plainly so.” See Moulden, 478

F.3d at 657. In making this determination, we rely “on the

definition of ‘plain’ that we use in our ‘plain’ error

analysis.” Crudup, 461 F.3d at 439. Specifically, an error is

plain where it is “‘clear’ or, equivalently, ‘obvious.’” United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)).

Finally, even if we determine that a revocation

sentence is plainly unreasonable, we will affirm the sentence if

the error is harmless. See United States v. Thompson, 595 F.3d

544, 548 (2010). Under this inquiry, the Government bears the

burden to establish that the error “did not have a substantial

and injurious effect or influence on the result and we can say

with fair assurance, that the district court’s explicit

consideration of the defendant’s arguments would not have

5
Additionally, not all of the § 3553(a) factors are
applicable on review of a revocation sentence, as a district
court may not consider (1) whether the revocation sentence
“reflects the seriousness of the offense, promotes respect for
the law, and provides just punishment for the offense” as
discussed in § 3553(a)(2)(A); or (2) whether there are other
“kinds of sentences available” as discussed in § 3553(a)(3).
See Crudup, 461 F.3d at 439 (internal quotation marks and
alterations omitted).

9
affected the sentence imposed.” United Stats v. Boulware, 604

F.3d 832, 840 (4th Cir. 2010) (internal quotation marks and

alterations omitted).

III.

A. Reasonableness

We first conclude Appellant’s sentence was

procedurally unreasonable. 6 A sentence is procedurally

unreasonable when, inter alia, the sentencing court fails “to

adequately explain the chosen sentence—including an explanation

for any deviation from the Guidelines range.” Gall, 552 U.S. at

51. 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, but it still ‘must provide a statement

of reasons for the sentence imposed.’” Thompson, 595 F.3d at

547 (quoting Moulden, 478 F.3d at 657).

6
Normally, we review revocation sentences for procedural
and substantive reasonableness. See Crudup, 461 F.3d at 438.
However, because Appellant does not challenge the substantive
reasonableness of his sentence, we need only determine whether
his sentence was procedurally unreasonable. Further, our
conclusion that Appellant’s sentence was procedurally
unreasonable moots any consideration of substantive
reasonableness. See United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (“If, and only if, we find the sentence
procedurally reasonable can we ‘consider the substantive
reasonableness of the sentence imposed under an abuse-of-
discretion standard.’”) (quoting Gall v. United States, 552 U.S.
38, 51 (2007)).

10
 Additionally, “‘[w]here the defendant or prosecutor

presents non-frivolous 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.’” Carter, 564 F.3d at 328

(quoting Rita v. United States, 551 U.S. 338, 357 (2007)). As

we held in Carter, “the Supreme Court's recent sentencing

jurisprudence plainly precludes any presumption that, when

imposing a sentence, the district court has silently adopted

arguments presented by a party. Rather, the district judge, not

an appellate court, must make an individualized assessment based

on the facts presented to him.” See Carter, 564 F.3d at 329

(quoting Gall 552 U.S. at 49-50).

Finally, in all sentencing appeals involving an out-

of-Guidelines sentence, as we have here, “‘the district court

must give serious consideration to the extent of the departure

or variance, and must adequately explain the chosen sentence to

allow for meaningful appellate review and to promote the

perception of fair sentencing.’” United States v. King, 673

F.3d 274, 283 (4th Cir. 2012) (quoting United States v.

Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011)).

Here, Appellant’s sentence was procedurally

unreasonable because the district court failed to address any of

Appellant’s specific arguments raised at the second revocation

11
hearing. As noted, at the second revocation hearing, Appellant

made several arguments in favor of his proposed sentence, some

of which had not been raised at the prior revocation hearing.

In particular, at the second revocation hearing, Appellant

argued for the first time that (1) he had been actively

participating in drug treatment programs; (2) he had obtained a

business license to become a handyman and was actively seeking

employment; and (3) his initial sentence reduction should not be

considered as a reason for imposing a higher revocation sentence

because it was not a “break” inasmuch as he had to testify

against other gang members in order to earn that reduction.

This is significant because even if we were to accept

the Government’s argument that we should simply consider the

district court’s statements from the initial revocation hearing

in order to satisfy Carter, we still could not find that the

district court explicitly addressed Appellant’s arguments as

required by Carter. This problem is compounded by the fact

that, in this case, Appellant’s sentence represented a 150%

increase from the top of the revocation sentencing range. As

noted, the specificity with which a district court must explain

its chosen sentence increases in cases where the district court

imposes an above-Guidelines sentence. See King, 673 F.3d at

283. Accordingly, in this case, the district court’s sole

12
explanation, “I think we have done all that we can do for Mr.

Fisher” is insufficient to support the sentence imposed.

In response, the Government argues that, because the

ultimate sentence imposed fell between the parties’ recommended

sentences, the district court necessarily considered each of the

parties’ arguments when fashioning the sentence. However, this

argument invites us to do precisely what Carter forbids us to do

and to presume that the district court silently considered

Appellant’s arguments. Accordingly, because the district court

did not expressly consider the arguments that Appellant made at

the second revocation hearing, Appellant’s sentence was

procedurally unreasonable.

Having concluded that Appellant’s sentence was

unreasonable, we must now determine whether it was plainly so.

To be plainly unreasonable, a sentence must “run afoul of

clearly settled law.” Thompson, 595 F.3d at 548. In Thompson,

we noted that, since the Moulden decision in 2007, it has been

clearly settled in the Fourth Circuit that a district court must

explicitly state its reasons for imposing a particular

revocation sentence. See Thompson, 595 F.3d at 548 (“We are

certain, though, that the district court's obligation to provide

some basis for appellate review when imposing a revocation

sentence, however minimal that basis may be, has been settled in

this Circuit since at least Moulden.”). Accordingly, because

13
the district court did not follow this clearly settled law,

Appellant’s sentence was plainly procedurally unreasonable.

B. Harmless Error

Finally, the Government contends that any error was

harmless because explicit consideration of Appellant’s arguments

on remand would not alter his sentence. The Government bases

this argument on the fact that the district court had signaled

its intent to impose a lengthy sentence on Appellant at the

first revocation hearing and Appellant’s arguments for a reduced

sentence at the second revocation hearing were “brief and

straightforward.” Br. of Appellees 12. We disagree.

As noted, at the second revocation hearing, Appellant

made different arguments than he had made at the first

revocation hearing. Accordingly, the district court was

compelled to address these arguments and provide an

“individualized” explanation for its decision to deviate from

the Guidelines. Because the district court did not do so, we

cannot conclude the error was harmless. See Lynn, 592 F.3d at

582 (“We cannot conclude that this error was harmless. When

faced with an unexplained out-of-Guidelines sentence, we have in

the past remanded for resentencing because we could not

determine why the district court deemed the sentence it imposed

appropriate. We see no reason to abandon this approach today.”)

(internal citations and quotation marks omitted).

14
 The Government cites two cases in which we applied

harmless error to a procedurally unreasonable sentence where the

error was based on a district court’s inadequate explanation.

See, e.g., United States v. Hernandez-Frias, 475 Fed. App’x 488

(4th Cir. 2012); United States v. Boulware, 604 F.3d 832, 840

(4th Cir. 2010). However, neither of these cases involved an

above-Guidelines sentence. This is significant because, as

noted, a district court has a heightened burden when explaining

an above-Guidelines sentence. Thus, because the district court

provided no individualized explanation for its decision to

impose an above-Guidelines sentence, we cannot apply harmless

error in this instance.

IV.

For these reasons, we vacate Appellant’s sentence and

remand to the district court for resentencing.

VACATED AND REMANDED

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SHEDD, Circuit Judge, dissenting:

Javaad Fisher’s sentence is procedurally reasonable and,

even if it were not, any error is harmless. Accordingly, I

respectfully dissent from the majority’s decision to vacate his

sentence and remand for further proceedings.

In reviewing a sentence imposed for violating supervised

release we apply the “plainly unreasonable” standard, United

States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006), and “take[]

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).

Relevant here, the court’s statement of reasons “‘need not be as

specific as has been required’ for departing from a traditional

guidelines range.” Id. at 657 (quoting Crudup, 461 F.3d at

439)). A court is required to “place on the record an

‘individualized assessment’ based on the particular facts of the

case before it.” United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009).

As the majority recounts, the district court gave an

individualized explanation on the record at Fisher’s first

revocation sentencing hearing, explaining that it would

“normally” have sentenced Fisher to the statutory maximum of 60

months imprisonment but, in recognition of his drug problem, the

16
court would give him “an opportunity” to get his “problems

solved,” therefore only imposing a sentence of 6 months

imprisonment. (J.A. 33). The court made clear, however, that

“if that doesn’t work, if the Probation Officer brings you back

in here, I won’t have any choice but to send you to jail, and

for a long time.” (J.A. 34). Fisher failed to heed this advice

and after his release he quickly violated his supervised release

conditions. At the second revocation hearing, the Government—

represented by the same Assistant U.S. Attorney (AUSA) who

originally prosecuted Fisher in 2003—pressed for the statutory

maximum of 54 months imprisonment, 1 explaining in detail the

numerous breaks Fisher had been afforded and his failure to take

advantage of the court’s repeated leniency. Fisher’s arguments

in response, made by the same attorney who represented him at

the first revocation hearing, were unexceptional and, in

substance, no different from those at the first hearing. 2 The

1
At the first hearing, the Government argued for a sentence
of nine months imprisonment.
2
At the first revocation hearing Fisher’s attorney focused
on Fisher’s substance abuse and requested a “more intensive drug
treatment program.” (J.A. 31). Fisher’s attorney noted that
Fisher had not had “any major issues” while on supervision and
that he was trying to find a job but had been unable to do so.
Fisher himself then apologized to his community and his family.
At the second hearing, Fisher’s attorney argued that Fisher had
committed only “technical” violations, had “consistently come to
this Court and said, ‘I have a drug abuse problem,’” and was
attempting to find a job. (J.A. 45-46). Fisher again
(Continued)
17
court then imposed a sentence of 30 months, adding “we have done

all that we can do for Mr. Fisher.”

In my view, the district court provided an individualized

explanation for Fisher’s sentence during his sentencing process

at the first hearing. At the second hearing, the court simply

implemented the sentence it had already promised—and had

provided an individualized explanation for—at the first

sentencing. The court’s words, that it had done all it could

for Fisher, indicate that it had given him a break the first

time with the promise of a significant sentence if Fisher failed

to take advantage of the opportunity. I do not believe Carter

requires more, particularly given the more deferential standard

we employ in the supervised release context. Here, the same

judge, the same AUSA, and the same criminal defense attorney

were present at both hearings. In fact, Fisher’s attorney

admitted at oral argument that she was not surprised that the

court imposed this sentence. Therefore, I believe Fisher’s

sentence is procedurally reasonable and is certainly not

“plainly” unreasonable.

apologized, claimed he had left his criminal life behind, and
mentioned that he wanted to be there for his daughter. While
the words may have changed, the substance of Fisher’s arguments
was the same at both hearings.

18
 Even assuming the district court committed procedural

error, any error is harmless. United States v. Boulware, 604

F.3d 832, 838-39 (4th Cir. 2010). Under the harmless error

standard, as it applies to procedural sentencing errors, “the

government may avoid reversal only if it demonstrates that the

error did not have a substantial and injurious effect or

influence on the result and we can say with fair assurance that

the district court’s explicit consideration of [the defendant’s]

arguments would not have affected the sentence imposed.” Id. at

838 (internal quotation marks and alterations omitted). The

Government has satisfied that standard here. The same

experienced district judge sentenced Fisher in 2004, reduced his

sentence in 2005, and handled both revocation hearings. The

judge warned Fisher at the first revocation hearing that Fisher

would face significant jail time if he violated supervised

release again, leaving us with “no doubt” that the court would

have imposed the same sentence, particularly given that Fisher’s

arguments were “very weak.” Id. at 839. Remanding this case

for further proceedings is a “pointless waste of resources,” id.

at 840, given that the district court will simply reenter—with

an additional paragraph of explanation—the same sentence, “[a]

reasonable sentence” that “we would” then “be compelled to

affirm.” United States v. Savillon-Matute, 636 F.3d 119, 123

(4th Cir. 2011) (internal quotation marks omitted). Clearly,

19
the district judge handled this revocation properly, and I

believe quite admirably—stating clearly what he intended to do,

but giving the defendant one last chance to correct his

behavior. To require the judge to simply restate his clear

intention and determination under these circumstances would

result in “the empty formality of an unnecessary remand.”

United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012).

For these reasons, I respectfully dissent.

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