Filed: Mar. 15, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5191 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAVAAD FISHER, a/k/a Lover Butt, Defendant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 Vacated and remanded by unpublished per curiam opinion.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 Sh
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5191 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAVAAD FISHER, a/k/a Lover Butt, Defendant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 Vacated and remanded by unpublished per curiam opinion.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 She..
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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
15
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.
20
