UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4295
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CASHMERE CAZEAU,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. James C. Fox, Senior
District Judge. (4:10-cr-00101-F-1)
Argued: March 22, 2013 Decided: March 27, 2013
Before WILKINSON and DAVIS, Circuit Judges, and Jackson L.
KISER, Senior United States District Judge for the Western
District of Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Bettina Kay Roberts, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Jennifer P. May-Parker, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C.
Gordon, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Cashmere Cazeau appeals his thirty-month sentence for
violation of supervised release, a sentence significantly above
the range prescribed by the applicable Guidelines Policy
Statement. Cazeau principally argues that his sentence is
plainly unreasonable because the district court stated, among
its reasons for imposing the sentence, that the sentence would
enable Cazeau to participate in the Bureau of Prisons’ intensive
drug treatment program. For the reasons that follow, we vacate
the judgment and remand.
Cazeau was convicted in the Eastern District of Virginia on
drug and firearm charges in 1994, as to which the district court
imposed an aggregate sentence of 324 months in prison, comprised
of concurrent 264-month terms on the drug counts and a
consecutive 60 months on the firearm count, to be followed by 60
months of supervised release. Cazeau’s sentence was subsequently
reduced to 264 months when his firearm conviction was vacated.
Later, it was further reduced to 211 months based on a
retroactive amendment to the Sentencing Guidelines. Supervised
release commenced on October 6, 2009, and supervision was
transferred to the Eastern District of North Carolina in
November 2010.
Shortly thereafter, Cazeau’s probation officer filed
reports notifying the district court that Cazeau had violated
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terms of supervised release. Specifically, Cazeau violated the
terms of his supervised release by using a controlled substance,
as disclosed by five positive urinalysis tests for marijuana,
and by failing to participate in a drug testing program.
At the ensuing supervised release revocation hearing,
Cazeau admitted the violations. The court found that the
violations had been established, revoked Cazeau’s supervised
release, and sentenced him to thirty months’ imprisonment, well
above the three-to-nine-months range recommended by the
applicable Policy Statement. In explaining its decision, the
district court began by stating that the sentence would enable
Cazeau to participate in an intensive drug treatment program.
Additionally, the court explained that such a sentence was
justified because: (1) Cazeau’s continued drug use and failure
to participate in the testing program increased the risk that he
would resume drug distribution activities and posed a threat to
society; (2) his original sentence had already been reduced due
to vacatur of his firearm conviction and a crack cocaine
Guidelines amendment; (3) his criminal history did not fully
reflect the seriousness of his prior criminal conduct; and (4)
he exhibited disregard for the terms of supervised release from
the beginning by changing his residence. This appeal followed.
A district court has broad discretion to impose a sentence
upon revoking a defendant’s term of supervised release. United
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States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Thus, we
will affirm a supervised release revocation sentence if it is
within the governing statutory range and not plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th
Cir. 2006). In reviewing the sentence, “we follow generally the
procedural and substantive considerations” used in reviewing
original sentences. Id. at 438.
A revocation sentence is procedurally reasonable if the
district court has considered the Policy Statements contained in
Chapter Seven of the U.S. Sentencing Guidelines Manual and the
applicable 18 U.S.C. § 3553(a) sentencing factors, id. at 440,
and has adequately explained its sentence, though it need not
explain the sentence in as much detail as when imposing an
original sentence. Thompson, 595 F.3d at 547.
Cazeau did not argue in the district court that his need
for drug treatment was an inappropriate ground for his
revocation sentence. Therefore, we review his challenge for
plain error. See United States v. Bennett, 698 F.3d 194, 200
(4th Cir. 2012), cert. denied, 2013 WL 359745 (U.S. March 4,
2013) (No. 12-8489). Thus, to obtain relief on the basis of
plain error, Cazeau must show that (1) an error occurred; (2) it
was plain; (3) it affected his substantial rights; and (4) a
denial of relief would “result in a miscarriage of justice.” Id.
(citations omitted).
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Applying the rule of Tapia v. United States, 131 S. Ct.
2382 (2011), we have held that a district court may not base a
revocation sentence of incarceration upon a defendant’s
rehabilitative needs. Bennett, 698 F.3d at 197-98 (“We thus hold
that Tapia applies to the revocation context too.”). Thus,
although Tapia was decided after the district court imposed a
sentence in this case, Cazeau correctly contends that the
district court erred by considering a prohibited factor in
imposing the revocation sentence and that the error is plain.
See Henderson v. United States, 133 S. Ct. 1121 (2013). The
government appropriately concedes that there was error and that
the error was plain, but argues that given the other factors to
which the court alluded in explaining its sentence, we should
decline to notice the error. We disagree and conclude that the
record amply supports Cazeau’s contention that his sentence of
incarceration was likely increased on the basis of the district
court’s clearly-expressed belief that he could benefit from drug
treatment while in prison. This rendered the district court’s
sentence procedurally erroneous and plainly unreasonable. The
sentencing error here affected Cazeau’s substantial rights and
we are constrained to avoid the resulting injustice. Bennett,
698 F.3d at 200.
Accordingly, we vacate the judgment and remand for further
proceedings consistent with this opinion. Because Cazeau is
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nearing the end of a thirty-month sentence we conclude is
plainly unreasonable, we direct the clerk to issue the mandate
forthwith. *
VACATED AND REMANDED;
MANDATE TO ISSUE FORTHWITH
*
Cazeau also challenges his revocation sentence as infirm
on the ground that the district court impermissibly took into
account the fact that his original sentence had been reduced
based on an amendment to the crack cocaine Sentencing
Guidelines. In light of our holding on his principal issue, we
need not address this claim.
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