Filed: Dec. 23, 2013
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4118 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TASHELL ROMAINE WALLER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:98-cr-00192-JRS-1) Argued: December 12, 2013 Decided: December 23, 2013 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Judge Shedd wr
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4118 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TASHELL ROMAINE WALLER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:98-cr-00192-JRS-1) Argued: December 12, 2013 Decided: December 23, 2013 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Judge Shedd wro..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4118
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TASHELL ROMAINE WALLER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:98-cr-00192-JRS-1)
Argued: December 12, 2013 Decided: December 23, 2013
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. Judge
Shedd wrote a dissenting opinion.
ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Erik Sean Siebert, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON
BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, Robert J. Wagner, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tashell Romaine Waller appeals her eighteen-month sentence,
imposed following revocation of her supervised release.
For the reasons that follow, we vacate and remand for
resentencing.
Waller completed her incarceration for possession with
intent to distribute crack cocaine and using and carrying a
firearm in relation to a drug trafficking offense in 2008 and
thereafter began serving a five-year term of supervised release.
Beginning in 2010, Waller violated several conditions of her
supervised release. She admitted to all of the violations, and
the district court gave her numerous opportunities to correct
her conduct. Finally, at her fourth and final violation hearing
held in February 2013, the district court revoked her
supervised release and sentenced her to eighteen months of
imprisonment.
At the final revocation hearing, the Government sought a
twenty-four-month sentence, pointing to the numerous chances
Waller had to conform her conduct to the terms of
supervision and the fact that Waller had attempted to evade
discovery of her drug use. In contrast, defense counsel sought
home detention in light of Waller’s responsibilities for her
children. Waller personally addressed the court. The district
court addressed Waller at some length and noted in particular
2
that Waller’s attempt to defeat her drug test was a knowing
and intentional effort to violate the court’s order and could
not be “left without some discipline.” J.A. 55. The court
revoked Waller’s supervised release and imposed an eighteen-
month sentence.
At the February 2013 hearing, neither the court nor the
parties referred to the Guidelines Manual policy statement and
corresponding table suggesting 3-9 months of imprisonment
for commission of the grade C violations by a person, like
Waller, in criminal history category I. See U.S. Sentencing
Guidelines Manual § 7B1.4 (2012).
The issue before us is whether the district court committed
reversible error in failing to consider, on the record, Waller’s
applicable policy statement range.
Generally, we will affirm a sentence imposed after
revocation of supervised release unless that sentence is plainly
unreasonable. See United States v. Crudup, 461 F.3d 433, 437
(4th Cir. 2006). 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) (citation and
internal quotation omitted). But, we have held that the
sentencing court “must consider the policy statements contained
in Chapter 7, including the policy statement range, as ‘helpful
3
assistance,’ and must also consider the applicable [18 U.S.C.]
§ 3553(a) factors.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (quoting
Crudup, 461 F.3d at 439); see also
Thompson, 595 F.3d at 547.
Here, the district court may well have considered many of
the applicable § 3553(a) factors, which the Government argues
were explicitly discussed in earlier revocation hearings. But the
last such hearing occurred two years earlier. And more
importantly, at the February 2013 hearing, the court failed to
1
indicate any consideration of the policy statement range. The
Government also argues that the parties and court had a worksheet
setting forth the Guidelines range. The certified record on
appeal, however, contains no such worksheet, although the
Government, over Waller’s objection, tardily submitted the
worksheet to the argument panel. In any event, the mere fact that
a Probation Officer prepared a worksheet does not establish, on
the present record, that the court actually considered the policy
1
The Government relies on United States v. Davis, 53 F.3d
638 (4th Cir. 1995), in which we held that the sentencing court
does not need to specifically mention the Guidelines range in
order to establish that it considered the relevant policy
statement. There are, however, critical differences between the
facts in Davis and the record before us here. In Davis, the
policy statement range was referenced repeatedly on the record
and the supervised release worksheet was put on the
record. 53
F.3d at 642. Nothing of the sort occurred here. In the face of
such a record, Davis is plainly distinguishable and we therefore
decline the Government’s invitation to presume that the court
actually considered the policy statement range.
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statement range. We therefore conclude that Waller’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
(citation omitted). In this case, the mandate that a sentencing
court must consider the Chapter 7 policy statement range has been
clearly settled since at least 2007, the date of our Moulden
2
decision. Because Waller’s sentence violated Moulden’s clear
language, it was plainly unreasonable.
The Government argues that any error was harmless because
the district court’s explicit consideration of Waller’s policy
statement range would not have affected her sentence. Although
the contention is not without force, we cannot conclude that
the error here was harmless.
As described above, the district court is charged with
providing an individualized explanation for its decision to
deviate from the policy statement range. Moulden, 478 F.3d at
657. We have carefully reviewed the court’s statements at the
sentencing proceeding. Those statements do indeed suggest that
it was unlikely to sentence Waller within the policy statement
range. Nevertheless, we are not unconditionally persuaded that
2
Indeed, we came to this precise conclusion in April of this
year in an unpublished decision, United States v. Stallins, 521
Fed. App’x 104, 107 (4th Cir. 2013). Of course, at the time of
Waller’s violation hearing in February 2013, the district court
did not have the benefit of our Stallins opinion.
5
the court intended to deviate upward from the policy statement
range. Similarly, that the court may have articulated reasons
sufficient to support an eighteen–month sentence does not,
standing alone, provide “fair assurance” that the court would
have given the same sentence if the record demonstrated that
it had considered the policy statement range. United States
v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010). “For a
procedural sentencing error to be harmless, the government must
prove that the error did not have a substantial and injurious
effect or influence on the result.”
Thompson, 595 F.3d at 548
(internal citation omitted). Here, if the court had explicitly
considered Waller’s policy statement range, “it could
conceivably have given [her] a lower sentence.”
Id.
For the reasons set forth, therefore, we vacate the judgment
and remand for resentencing in conformity with this opinion. 3
VACATED AND REMANDED
3
We deny as moot Waller’s motion to strike the supervised
release violation worksheet.
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SHEDD, Circuit Judge, dissenting:
The issue presented in this appeal is whether the district
court properly considered the Guideline Policy statements during
a supervised release revocation hearing. I believe the court did,
and therefore I respectfully dissent.
Here, Waller had an initial revocation hearing on March 22,
2011, at which hearing the district court clearly knew the policy
statement range was three to nine months. The district court
found violations, but continued sentencing to give Waller a
chance to correct her behavior. This leniency did not work, and
Waller violated again in May 2011. But in a further effort to
work with the defendant, the district court continued Waller on
her supervised release under the same terms and conditions.
Despite the district court’s best efforts to work with Waller,
she violated her conditions again several more times between
October and December 2012. At a third court hearing, after Waller
had failed two opportunities to follow her release conditions,
the district court imposed a sentence of eighteen months.
Waller now asserts that although the district court had the
range before it at her first revocation hearing, somehow it was
unaware of that range when it finally imposed a sentence.
Waller’s argument is undercut by the precedent of this Circuit.
There is simply no question that the district court knew the
policy statement range at the first hearing. The government
7
stated the range in open court, and Waller does not challenge the
fact that the court, the government, and she all had the
probation officer’s worksheet which reflected the three to nine
month range. Over the course of the hearings, it is absolutely
clear that the district court was well aware of Waller’s conduct
and the issues affecting her sentencing. The court listened to
argument and recommendations for sentencing from both Waller and
the government, and then imposed a sentence that was between the
two recommendations.
Here, to comply with procedural reasonableness, the
sentencing court must consider the policy statement and the
circumstances of the individual defendant, but our precedent does
not require that the consideration of the policy statement be
explicit:
The flaw in [the] argument here is [the] assumption
that the district court did not consider the relevant
policy statement. . . . The fact that the district
court did not mention the three to nine month range
provided by the policy statement is not dispositive. A
court need not engage in ritualistic incantation in
order to establish its consideration of a legal issue.
It is sufficient if, as in the case at bar, the
district court rules on issues that have been fully
presented for determination. Consideration is implicit
in the court's ultimate ruling.
United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995)
(emphasis added). Because it is abundantly clear that the
district court knew the policy statement range for Waller and
8
gave both sides the opportunity to present arguments on the
appropriate sentence upon revocation, I would affirm.
9
