USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4128
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
BRADLEY CHARLES ROBERSON, a/k/a Fly Guy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:19-cr-00024-BO-1)
Submitted: January 5, 2023 Decided: February 17, 2023
Before THACKER, Circuit Judge, and MOTZ and KEENAN, Senior Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Geoffrey W. Hosford, HOSFORD & HOSFORD, PC, Wilmington, North Carolina; Matthew N. Leerberg, Raleigh, North Carolina, Brian Bernhardt, FOX ROTHSCHILD LLP, Charlotte, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEYS, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 2 of 8
PER CURIAM:
Bradley Charles Roberson appeals from his 66-month sentence, imposed on remand
for resentencing. On appeal, he challenges the adequacy of the district court’s explanation
of his sentence and the district court’s failure to orally impose the discretionary conditions
of supervised release. We affirm.
I.
On August 8, 2019, Roberson pleaded guilty without a written plea agreement to
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924. The United States Probation Office prepared a presentence investigation report
(PSR), calculating an offense level of 25 and a criminal history category of III, with a
resulting United States Sentencing Guidelines (Guidelines) imprisonment range of 70 to
87 months. Roberson did not object to the calculation.
At Roberson’s sentencing hearing, defense counsel stated that Roberson served two
years in the Army after graduating from high school. Defense counsel explained that, after
Roberson returned home from the Army, he “got into this drug business [and] made some
bad choices.” Defense counsel noted that Roberson’s stepfather owned an auto body shop
and would have a job waiting for Roberson when he was released from prison. Counsel
asked the court to vary downward from the Guidelines range because of Roberson’s service
to his country and the fact that he would have a job waiting for him when he returned home
from prison.
The court then asked Roberson about a traffic stop from earlier that year in which
five pounds of marijuana was found in Roberson’s car. Roberson explained that he did not
2 USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 3 of 8
know about the marijuana and that it was his cousin’s. The Government noted that the
charges were dismissed in light of the instant charges, for which Roberson would face
“serious time.”
After this exchange, the court, without further explanation, imposed an 84-month
term of imprisonment, a three-year term of supervised release, and credit for time served
while awaiting his sentence. The court did not orally explain or discuss the conditions of
supervision, but the written judgment included mandatory, standard, and additional
standard conditions of supervised release. Roberson timely appealed.
On appeal, we determined that the district court procedurally erred by failing to
adequately consider Roberson’s arguments for a variant sentence. United States v.
Roberson, 827 Fed. App’x 302, 303 (4th Cir. 2020) (No. 19-4939). We noted that the
district court did not “in any way” address Roberson’s request for a variance based on his
military service and the fact that he had a job secured upon his release. Id. at 304.
Moreover, although the court engaged in a colloquy about potential additional criminal
conduct by Roberson, the court did not “provide any reasoning whatsoever for choosing
the sentence it did.” Id. Accordingly, we vacated Roberson’s sentence and remanded for
resentencing. Id. at 305.
At resentencing, neither the court nor the parties revisited the calculation of the
Guidelines range. Roberson’s counsel again highlighted Roberson’s military service and
that Roberson had employment waiting for him upon his release. Further, he noted that,
due to COVID-19, Roberson was in isolation for nearly a year and programming at his
prison was suspended. Defense counsel requested a variant sentence of 60 months.
3 USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 4 of 8
The Government noted that Roberson received a “general” rather than “honorable”
discharge from the Army. The Government argued that such a discharge “suggest[ed]
some sort of disciplinary action,” although the Government “couldn’t attest to that.”
Finally, the Government stated that federal prisons were “rolling out vaccine[s] pretty
quickly.” The Government did not advocate for a particular sentence.
The district court noted that the Guidelines range of 70 to 87 months was “legitimate
and appropriate.” The court found the request for 60 months “to be too modest given
[Roberson’s] criminal history.” Nonetheless, the court imposed a downward variance of
66 months’ imprisonment with “three years of supervised release,” and stated that “the
other conditions remain as previously imposed.” The written judgment noted that the
below-Guidelines sentence was imposed based upon Roberson’s military service,
“[p]ending employment upon release,” and COVID-related issues. The written judgment
included mandatory, standard, and additional standard conditions of supervised release.
Roberson timely appealed.
II.
When rendering a sentence, the district court must make and place on the record an
individualized assessment based on the particular facts of the case. United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). While the sentencing court must state the specific
reasons that support the sentence, the explanation “need not be exhaustive.” United
States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014). The court’s explanation must be
sufficient “to satisfy the appellate court that [the court] has considered the parties’
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arguments and has a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
“Where the defendant or prosecutor presents nonfrivolous 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.” United
States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015) (internal quotation marks omitted).
Although “[i]t is sometimes possible to discern a sentencing court’s rationale when an
explanation is lacking,” United States v.
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USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4128
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
BRADLEY CHARLES ROBERSON, a/k/a Fly Guy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:19-cr-00024-BO-1)
Submitted: January 5, 2023 Decided: February 17, 2023
Before THACKER, Circuit Judge, and MOTZ and KEENAN, Senior Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Geoffrey W. Hosford, HOSFORD & HOSFORD, PC, Wilmington, North Carolina; Matthew N. Leerberg, Raleigh, North Carolina, Brian Bernhardt, FOX ROTHSCHILD LLP, Charlotte, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEYS, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 2 of 8
PER CURIAM:
Bradley Charles Roberson appeals from his 66-month sentence, imposed on remand
for resentencing. On appeal, he challenges the adequacy of the district court’s explanation
of his sentence and the district court’s failure to orally impose the discretionary conditions
of supervised release. We affirm.
I.
On August 8, 2019, Roberson pleaded guilty without a written plea agreement to
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924. The United States Probation Office prepared a presentence investigation report
(PSR), calculating an offense level of 25 and a criminal history category of III, with a
resulting United States Sentencing Guidelines (Guidelines) imprisonment range of 70 to
87 months. Roberson did not object to the calculation.
At Roberson’s sentencing hearing, defense counsel stated that Roberson served two
years in the Army after graduating from high school. Defense counsel explained that, after
Roberson returned home from the Army, he “got into this drug business [and] made some
bad choices.” Defense counsel noted that Roberson’s stepfather owned an auto body shop
and would have a job waiting for Roberson when he was released from prison. Counsel
asked the court to vary downward from the Guidelines range because of Roberson’s service
to his country and the fact that he would have a job waiting for him when he returned home
from prison.
The court then asked Roberson about a traffic stop from earlier that year in which
five pounds of marijuana was found in Roberson’s car. Roberson explained that he did not
2 USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 3 of 8
know about the marijuana and that it was his cousin’s. The Government noted that the
charges were dismissed in light of the instant charges, for which Roberson would face
“serious time.”
After this exchange, the court, without further explanation, imposed an 84-month
term of imprisonment, a three-year term of supervised release, and credit for time served
while awaiting his sentence. The court did not orally explain or discuss the conditions of
supervision, but the written judgment included mandatory, standard, and additional
standard conditions of supervised release. Roberson timely appealed.
On appeal, we determined that the district court procedurally erred by failing to
adequately consider Roberson’s arguments for a variant sentence. United States v.
Roberson, 827 Fed. App’x 302, 303 (4th Cir. 2020) (No. 19-4939). We noted that the
district court did not “in any way” address Roberson’s request for a variance based on his
military service and the fact that he had a job secured upon his release. Id. at 304.
Moreover, although the court engaged in a colloquy about potential additional criminal
conduct by Roberson, the court did not “provide any reasoning whatsoever for choosing
the sentence it did.” Id. Accordingly, we vacated Roberson’s sentence and remanded for
resentencing. Id. at 305.
At resentencing, neither the court nor the parties revisited the calculation of the
Guidelines range. Roberson’s counsel again highlighted Roberson’s military service and
that Roberson had employment waiting for him upon his release. Further, he noted that,
due to COVID-19, Roberson was in isolation for nearly a year and programming at his
prison was suspended. Defense counsel requested a variant sentence of 60 months.
3 USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 4 of 8
The Government noted that Roberson received a “general” rather than “honorable”
discharge from the Army. The Government argued that such a discharge “suggest[ed]
some sort of disciplinary action,” although the Government “couldn’t attest to that.”
Finally, the Government stated that federal prisons were “rolling out vaccine[s] pretty
quickly.” The Government did not advocate for a particular sentence.
The district court noted that the Guidelines range of 70 to 87 months was “legitimate
and appropriate.” The court found the request for 60 months “to be too modest given
[Roberson’s] criminal history.” Nonetheless, the court imposed a downward variance of
66 months’ imprisonment with “three years of supervised release,” and stated that “the
other conditions remain as previously imposed.” The written judgment noted that the
below-Guidelines sentence was imposed based upon Roberson’s military service,
“[p]ending employment upon release,” and COVID-related issues. The written judgment
included mandatory, standard, and additional standard conditions of supervised release.
Roberson timely appealed.
II.
When rendering a sentence, the district court must make and place on the record an
individualized assessment based on the particular facts of the case. United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). While the sentencing court must state the specific
reasons that support the sentence, the explanation “need not be exhaustive.” United
States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014). The court’s explanation must be
sufficient “to satisfy the appellate court that [the court] has considered the parties’
4 USCA4 Appeal: 21-4128 Doc: 66 Filed: 02/17/2023 Pg: 5 of 8
arguments and has a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
“Where the defendant or prosecutor presents nonfrivolous 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.” United
States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015) (internal quotation marks omitted).
Although “[i]t is sometimes possible to discern a sentencing court’s rationale when an
explanation is lacking,” United States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020)
(alteration and internal quotation marks omitted), “an appellate court may not guess at the
district court’s rationale, searching the record for statements by the Government or defense
counsel or for any other clues that might explain a sentence[,]” Carter, 564 F.3d at 329-30.
An insufficient explanation of the sentence imposed constitutes significant procedural error
by the district court. United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010).
When, as here, the defendant has properly preserved the issue whether the
explanation was adequate by arguing for a sentence different from that which was imposed,
we review the issue for abuse of discretion. Id. at 578. If we find such abuse, we must
reverse unless we conclude that the error was harmless. Id. at 576. The Government bears
the burden of showing “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.”
United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (alterations and internal
quotation marks omitted).
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Here, despite this court’s ruling that the district court failed to provide an
explanation for its chosen sentence, the district court again failed to provide an explanation
on remand. The court noted that Roberson’s “criminal history” prevented the requested
60-month sentence, but the court did not provide any analysis as to why a downward
variance was appropriate. Neither the parties nor the court discussed Roberson’s criminal
history at the resentencing hearing in any way, and as discussed above, at the first
sentencing, the court focused on conduct which Roberson denied and for which he was not
convicted. Moreover, aside from the COVID-19 argument, Roberson’s mitigating
arguments at his second sentencing were the same as his arguments at his first sentencing.
Yet, without discussing COVID-19 or Roberson’s other arguments, the court imposed a
sentence 18 months shorter than the one imposed at Roberson’s first sentencing and below
the Guidelines range.
The Government argues that, because Roberson’s variance request was granted in
part, the court adequately considered Roberson’s arguments. However, when a variance is
granted, the court must still explain the extent of its variance and why the lower sentence
sought did not satisfy the § 3553 factors.
Next, the Government avers that any error was harmless because Roberson’s
sentence was unlikely to change on remand. Upon our review, we find this argument
persuasive and conclude that Roberson was not prejudiced by the district court’s error. In
fact, the district court’s brief consideration of the § 3553 factors resulted in a favorable
downward variance, despite the fact that Roberson’s arguments for a variance were not
particularly convincing, and those he presented at his first sentencing hearing had not
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resulted in a downward variance. Accordingly, given the reduction in sentence Roberson
received at his second sentencing, the relative weakness of his arguments for a variant
sentence, and the district court’s brief statement regarding Roberson’s criminal history, we
find that the district court’s inadequate explanation for the chosen sentence was harmless
error.
III.
Finally, the district court did not announce the discretionary conditions of
supervised release at either sentencing hearing. We have held that “all non-mandatory
conditions of supervised release must be announced at a defendant’s sentencing hearing,”
including both special conditions and discretionary “standard” conditions. United States
v. Rogers, 961 F.3d 291 (4th Cir. 2020); see also United States v. Singletary, 984 F.3d 341,
347 (4th Cir. 2021) (discussing supervised release nomenclature). We have explained that
“a district court may satisfy its obligation to orally pronounce discretionary conditions
through incorporation—by incorporating, for instance, all Guidelines ‘standard’ conditions
when it pronounces a supervised-release sentence, and then detailing those conditions in
the written judgment.” Rogers, 961 F.3d at 299; see also U.S. Sentencing Guidelines
Manual § 5D1.3(c), p.s. (listing standard conditions).
Here, both the written judgment from Roberson’s first sentencing and the amended
written judgment from his second sentencing imposed the “mandatory” conditions listed
in 18 U.S.C. § 3583(d), the “standard” conditions listed in USSG § 5D1.3(c), p.s., and
“additional standard conditions,” which are contained in USSG § 5D1.3(d), p.s. (“special”
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conditions). The district court did not orally impose any of these conditions at either
sentencing.
In his first appeal, Roberson did not challenge his conditions of supervised release.
And at Roberson’s second sentencing hearing, the district court informed Roberson that
“the other conditions remain[ed] as previously imposed.” We conclude that this statement,
though brief, incorporated by reference the conditions imposed at Roberson’s first
sentencing hearing. See United States v. Singletary, 984 F.3d 341, 346 (4th Cir. 2021)
(“[A] district court may incorporate by reference a condition or set of conditions during a
[sentencing] hearing.”); Rogers, 961 F.3d at 299 (finding that such incorporation satisfies
the district court’s obligation).
Thus, we affirm Roberson’s sentence and deny his motion to remand. We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED