UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4308
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN STALLINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:03-cr-00021-RAJ-TEM-1)
Argued: March 22, 2013 Decided: April 5, 2013
Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Michael F. Murray, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, Richard J. Colgan, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Norfolk, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, William D. Muhr,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Alvin Stallins appeals a 36-month sentence, imposed
following revocation of his supervised release. For the reasons
that follow, we vacate and remand for resentencing.
I.
In April 2003, Stallins pled guilty to one count of
possession with intent to distribute cocaine base and one count
of possession of a firearm as a felon. He received a sentence
of 121-months’ imprisonment, and five years of supervised
release.
In July 2008, the district court reduced Stallins’s
sentence to 100-months’ imprisonment pursuant to 18 U.S.C.
§ 3582(c). In October 2009, the court again reduced Stallins’s
sentence, this time to 76-months’ imprisonment, pursuant to the
Government’s substantial assistance motion. Later that month,
Stallins was released from prison and began his five-year term
of supervised release.
In January 2011, Stallins’s probation officer filed a
petition seeking revocation of Stallins’s supervised release.
The petition listed multiple violations of the supervised
release conditions, including Stallins’s recent arrest for
possession of cocaine with intent to distribute and several
firearms offenses. The probation officer later filed addenda to
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the petition, stating that the firearm charges had been nolle
prossed and that Stallins had pled guilty to the cocaine charge
and received a sentence of seven-years’ imprisonment.
On March 26, 2012, the district court held a supervised
release violation hearing. Stallins admitted to multiple
violations of the conditions of his supervised release,
including his possession with intent to distribute cocaine, his
failure to submit monthly supervised release reports, his
failure to submit to drug testing, and his possession of cocaine
based on positive drug tests. Based on those admissions, the
court found Stallins in violation of his supervised release
conditions, and revoked his supervised release.
The Government asked the court to sentence Stallins to the
statutory maximum 36-months’ imprisonment because his cocaine
violation was identical to the conduct underlying his original
federal conviction for which he had been serving a term of
supervised release. Stallins maintained that he did not
actually receive a significant benefit from his sentence
reductions because they came so late in his sentence, that his
state court sentence was particularly harsh, and that the birth
of his son had “profoundly changed his attitude.” On these
grounds, he requested a “short” revocation sentence running
concurrent to the state court sentence. Neither the court nor
any party referred to the Guidelines Manual policy statement and
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table suggesting a 24- to 30-months’ imprisonment for commission
of a grade A probation violation, like Stallins’s, by a person
with his criminal history category (IV). See U.S.S.G. § 7B1.4.
The court sentenced Stallins to the statutory maximum of
36-months’ imprisonment to run consecutive to his state court
sentence. The court chastised Stallins, finding it “inexcusable
that you are back in here again.” The court emphasized that the
law had not mandated any sentence reduction, rather the
reductions were “purely the Judge . . . trusting you and giving
you a chance.” Instead of taking advantage of that opportunity,
Stallins had started “sneaking around dealing some drugs again.”
II.
We affirm a sentence imposed after revocation of supervised
release unless that sentence is plainly unreasonable. See
United States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006).
Stallins maintains that the sentence he received is plainly
procedurally unreasonable because the court failed to consider
the applicable policy statement range.
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.” United States v. Thompson, 595 F.3d
544, 547 (4th Cir. 2010). But it “must consider the policy
statements contained in Chapter 7, including the policy
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statement range, as ‘helpful assistance,’ and must also consider
the applicable § 3553(a) factors.” United States v. Moulden,
478 F.3d 652, 656 (4th Cir. 2007) (emphasis added); see also
Thompson, 595 F.3d at 547.
Here, the district court may well have (at least
implicitly) considered many of the applicable § 3553(a) factors.
But it failed to indicate any consideration of the policy
statement range for revocation sentences. The Government admits
that the court did not calculate or recite the policy statement
range, but argues that it considered the range because “the
normal practice” in that district “is for the probation officer
to provide the district court and the parties with a worksheet
setting forth the guideline range.” However, the record
contains no such worksheet in this case. Nor would the mere
presence of a worksheet in the record demonstrate that the court
actually considered the policy statement range. Moreover,
nothing in the hearing transcript even implies, let alone
demonstrates, that the court considered Stallins’s policy
statement range during sentencing. * Facing such a dearth of
evidence, we cannot presume that the court did consider the
*
For these reasons, we deny the Government’s motion to file
a supplemental joint appendix containing a supervised release
violation worksheet purportedly given to the district judge at
sentencing but not filed with the clerk of court.
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policy statement range. Therefore, we conclude that Stallins’s
sentence was procedurally unreasonable.
“For a sentence to be plainly unreasonable, . . . it must
run afoul of clearly settled law.” Thompson, 595 F.3d at 548.
In this case, the mandate in Moulden that a sentencing court
must consider the Chapter 7 policy statement range has been
clearly settled since 2007. Because Stallins’s sentence
violated Moulden’s clear language, it was plainly unreasonable.
The Government suggests, however, that any error was
ultimately harmless because the district court’s explicit
consideration of Stallins’s policy statement range would not
have affected his sentence. The Government maintains the
court’s comments at sentencing “made plain that [it] was
finished with granting leniency to the defendant,” and that the
court ultimately “articulated sufficient reasons for giving the
defendant a 36-month revocation sentence.”
Although the Government’s contentions are not without
merit, we cannot conclude that the error here was harmless.
Under Crudup, the district court is charged with providing an
individualized explanation for its decision to deviate from the
policy statement range. 461 F.3d at 439; see also Moulden, 478
F.3d at 657. A sentencing court’s indication -- however
clear -- that it is “finished” granting a defendant sentencing
reductions does not in itself demonstrate that the court intends
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to deviate upward from the policy statement range. Similarly,
that the court articulated reasons sufficient to support a 36-
month sentence does not, standing alone, provide “fair
assurance” that the court would have given the same sentence if
it had considered the policy statement range. See United States
v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010). Rather, had the
court explicitly considered Stallins’s policy statement range,
“it could conceivably have given him a lower sentence.”
Thompson, 595 F.3d at 548. Accordingly, we must vacate and
remand for resentencing.
III.
For the foregoing reasons, we vacate Stallins’s sentence
and remand to the district court for resentencing.
VACATED AND REMANDED
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