UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4325
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLYDE WILLIAM PETERSON, a/k/a Clyde William Peterson, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland at Greenbelt. Peter J. Messitte, Senior District Judge. (8:15-cr-00376-PJM-1)
Argued: May 9, 2019 Decided: July 31, 2019
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Thacker joined.
ARGUED: Eugene Victor Gorokhov, BURNHAM & GOROKHOV, PLLC, Washington, D.C., for Appellant. Gregory Douglas Bernstein, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Ziran Zhang, BURNHAM & GOROKHOV, PLLC, Washington, D.C., for Appellant. Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.
2 WYNN, Circuit Judge:
Defendant Clyde Peterson pleaded guilty, pursuant to a plea agreement, to one
count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At
sentencing, the district court sentenced Defendant to an above-Guidelines sentence of 83
months in prison.
On appeal, Defendant asserts that the government breached the plea agreement by
recommending a sentence in excess of the agreed upon guideline range. We agree.
Accordingly, we vacate Defendant’s sentence and remand for resentencing.
I.
On the morning of June 9, 2015, two police officers observed two individuals
sitting in a stolen Ford Mustang—one of two vehicles that had been reported stolen the
previous day—in a parking lot near a bank in Upper Marlboro, Maryland. To apprehend
the individuals, the officers used the police truck to block the driver’s side of the stolen
Mustang, exited the truck, and circled around the rear of the Mustang. Upon approaching
the passenger side of the car, one of the officers saw the driver, Derrick Simmons,
holding a gun, prompting the officer to begin firing into the vehicle. Several bullets
struck Simmons and one of the bullets struck the passenger, Defendant, in the hand.
At the time they were apprehended, Defendant and Simmons wore gloves and two
layers of clothing, notwithstanding that it was a hot day in June. The officers found a
loaded Magnum .357 in Defendant’s pocket. And the officers found the other stolen
vehicle, a Ford Taurus, a short distance away.
3 Pursuant to a plea agreement dated June 6, 2016, Defendant agreed to plead guilty
to one count of being a Felon in Possession of a Firearm in violation of 18 U.S.C.
§ 922(g)(1). At the plea hearing, the prosecutor described the plea agreement to the
district court, stating that Defendant was reserving the right to argue for a sentence below
the agreed upon range under the advisory Sentencing Guidelines. The prosecutor further
represented that the government agreed to recommend a “reasonable sentence.” J.A.
196–97. After conducting the colloquy required by Rule 11 of the Federal Rules of
Criminal Procedure, the district court accepted Defendant’s plea.
At sentencing, the Presentence Report calculated—and the parties agreed—that
Defendant’s Guidelines range was 57–71 months imprisonment. In a Sentencing
Memorandum, Defendant asked the court to impose a sentence no greater than the upper
end of his Guidelines range. In response, however, the government requested that the
district court sentence Defendant to 108 months imprisonment—the same sentence that
his co-defendant Simmons had received.
The government maintained that an upward variance was appropriate because of
Defendant’s criminal history and the circumstances surrounding his arrest. Specifically,
the government emphasized that, at the time Defendant was found to be unlawfully
possessing the firearm, he had just stolen two motor vehicles and appeared to be
preparing to conduct an armed bank robbery. The government argued that an above-
Guidelines variance was reasonable due to the seriousness of the crime, to promote
respect for the law, and to provide adequate deterrence.
4 Before sentencing, Defendant’s attorney filed a motion to withdraw
representation, stating that Defendant had expressed concerns regarding his
understanding of the plea agreement, thereby raising concerns as to whether counsel had
adequately and effectively communicated the terms of the agreement to Defendant. The
district court granted the withdrawal motion and appointed new counsel.
After obtaining new counsel, Defendant moved to withdraw his guilty plea,
claiming that his plea was not knowing and voluntary because he did not understand the
meaning of the provision committing the government to request a “reasonable sentence.”
Defendant claimed he understood that language to mean that the government would not
recommend a sentence above the agreed-upon Guidelines range. Defendant further
argued, in the alternative, that the government breached the plea agreement by requesting
an above-Guidelines sentence. The district court denied Defendant relief.
Additionally, in his motion to withdraw and two separate supplemental sentencing
memoranda, Defendant argued that in determining his sentence, the district court should
consider the injury he suffered to his hand during his arrest as a mitigating factor.
Defendant detailed the various surgeries he had undergone and the future possibility that
his right index finger might have to be amputated. During a sentencing hearing on May
7, 2018, Defendant again asserted that the injury he suffered to his hand—and the
allegedly poor medical treatment he received for that injury while incarcerated—
constituted a mitigating factor warranting a sentence reduction.
At the conclusion of the hearing, the district court sentenced Defendant to 83
months’ imprisonment—one year above the high end of the agreed-upon Guidelines
5 range. The district court concluded that the upward departure was warranted in light of
the specific circumstances surrounding Defendant’s offense, agreeing with the
government that the circumstantial evidence indicated that Defendant and Simmons were
preparing to commit armed robbery of the nearby bank. Because Defendant possessed
the weapon “in connection with a crime that [was] about to be committed,” it was “a
more serious kind of felon in possession crime than otherwise,” the court reasoned. J.A.
469. In explaining the sentence, the court also considered Defendant’s previous
convictions, his co-conspirator’s 108-month sentence, his time at Chesapeake Detention
Facility, and his devotion as a father. The court, however, did not address Defendant’s
argument that his hand injury warranted a sentence reduction.
Defendant timely appealed.
II.
On appeal, Defendant argues that the government breached the plea agreement by
recommending a sentence above the Guidelines range. Defendant further maintains that
the district court erred in failing to expressly consider his argument that his hand injury
constituted a mitigating factor warranting a lower sentence. We address each argument
in turn.
A.
Whether the government has breached a plea agreement is a question of law we
review de novo. United States v. Lopez, 219 F.3d 343, 346 (4th Cir. 2000). A defendant
alleging that the government has breached a plea agreement “bears the burden of
6 establishing that breach by a preponderance of the evidence.” United States v. Snow, 234
F.3d 187, 189 (4th Cir. 2000).
When construing plea agreements, this Court “‘draw[s] upon contract law as a
guide to ensure that each party receives the benefit of the bargain,’ and to that end, [this
Court] ‘enforce[s] a plea agreement’s plain language in its ordinary sense.’” United
States v. Warner, 820 F.3d 678, 683 (4th Cir. 2016) (quoting United States v. Jordan, 509
F.3d 191, 195 (4th Cir. 2007)). As the Supreme Court has explained, “when a plea rests
in any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello v. New York, 404 U.S. 257, 262 (1971). Furthermore, as this Court has noted,
“[t]he Government, no less (and arguably more) than a private citizen, must be held to the
agreements it enters into with its citizens.” Jordan, 509 F.3d at 199 (citation omitted).
Therefore, if a defendant has “failed to receive the benefit of his bargain,” the
government is in breach. United States v. Peglera, 33 F.3d 412, 415 (4th Cir. 1994).
However, the government is only held “to those promises that it actually made to the
defendant.” Id. at 413.
“In determining what promises the government made, we read a plea agreement’s
plain language in its ordinary sense.” United States v. Tate, 845 F.3d 571, 575 (4th Cir.
2017) (quotations omitted). As with contract law, a fundamental maxim in construing
plea agreements is that the agreement should be “‘interpreted as a whole.’” United States
v. Barefoot, 754 F.3d 226, 246 (4th Cir. 2014) (quoting Restatement (Second) of
Contracts § 202 (1981)). Likewise, courts should choose an interpretation “which gives
7 effect to all provisions of the contract,” as opposed “to one which renders a portion of the
writing superfluous, useless or inexplicable.” United States v. Holbrook, 368 F.3d 415,
428 (4th Cir. 2004), vacated on other grounds, 545 U.S. 1125 (2005); see also United
States v. Brye, 146 F.3d 1207, 1211 (10th Cir. 1998). Additionally, “all ambiguities in
the Plea Agreement are to be construed against the government as its drafter.” Barefoot,
754 F.3d at 246.
Because plea agreements raise due process “concerns that differ fundamentally
from and run wider than those of commercial contract law,” United States v. Harvey, 791
F.2d 294, 300 (4th Cir. 1986), when a defendant pleads guilty pursuant to a written
agreement, the court should analyze the agreement with “greater scrutiny” than it would
apply in analyzing a commercial contract, Jordan, 509 F.3d at 195–96 (citing United
States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997)). As a result, even “derelictions on
the part of defense counsel that contribute to ambiguities and imprecisions in plea
agreements may not be allowed to relieve the Government of its primary responsibility
for insuring precision in the agreement.” Harvey, 791 F.2d at 301.
For several reasons, we conclude that the plea agreement was, at a minimum,
ambiguous as to whether the parties agreed that the government would not recommend a
sentence in excess of the agreed-upon Guidelines range. Most significantly, whereas the
section of the plea agreement in which the parties stipulate to the advisory Guidelines
range, Paragraph 6, expressly reserves to the Defendant the authority to argue for a
below-Guidelines sentence, neither that Paragraph nor any other provision in the
agreement expressly reserves to the government the authority to recommend an above-
8 Guidelines sentence. See J.A. 50–52 (“The Defendant reserves the right to argue for any
factor under 18 U.S.C. § 3553(a) that could take the sentence outside of the advisory
guidelines range and will notify the Court, the United States Probation Officer and
opposing counsel at least ten days in advance of the sentencing of the facts or issues they
intend to raise.”).
Because a defendant’s and the government’s authority to depart from requesting a
sentence within the Guidelines range are naturally “understood to go hand in hand,” the
plea agreement’s reservation of such authority to only Defendant provides strong
evidence that the plea agreement did not confer on the government the right to argue for
an above-Guidelines sentence. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002)
(noting that the expressio unius canon of construction “properly applies only when in the
natural association of ideas in the mind of the reader that which is expressed is so set over
by way of strong contrast to that which is omitted that the contrast enforces the
affirmative inference” (quoting E. Crawford, Construction of Statutes 337 (1940)); see
also, e.g., Bentley Funding Grp., L.L.C. v. SK & R Grp., L.L.C., 609 S.E.2d 49, 56 (Va.
2005) (Agee, J.) (“[U]nder the principle of expressio unius est exclusio alterius, the
omission of a particular covenant or term from a contract reduced to writing shows an
intent to exclude it.”); Wise Cnty. Bd. of Sup’rs v. Wilson, 463 S.E.2d 650, 652 (Va.
1995) (Keenan, J.) (“[T]he maxim expressio unius est exclusio alterius . . . . provides
that, when a [written instrument] mentions specific terms, an implication arises that items
not present were not intended to be included within the scope of the [written
instrument].”).
9 That the plea agreement expressly requires Defendant to provide advance notice of
the “facts or issues” supporting a below-Guidelines sentence if he intended to request
such a sentence, J.A. 50, further indicates that the agreement did not reserve to the
government the authority to argue for an above-Guidelines sentence. Put simply, if the
government had reserved such authority, one would expect the agreement to include a
similar provision obliging the government to provide advance notice of the “facts and
issues” supporting an above-Guidelines sentence. Yet the agreement includes no such
provision.
Nonetheless, the government appears to have been prepared to go to the
sentencing hearing and argue for an above-Guidelines sentence without notice to either
Defendant or the district court. In fact, the only notice Defendant received of the
government’s intention to argue outside the Guidelines range came in the government’s
response brief to Defendant’s own sentencing memorandum, which Defendant filed after
he learned that the government had argued for an above-Guidelines sentence in his co-
defendant Simmons’s case. We decline to interpret the agreement in a manner that would
require the Defendant to provide notice to the government when arguing outside the
Guidelines range but would not require the government to do the same to Defendant.
Such a result would be so fundamentally unfair as to be “inexplicable.” Holbrook, 368
F.3d at 428 (citation omitted).
Other sections of the plea agreement demonstrate that when the parties intended to
confer a particular right or obligation on both parties, they expressly did so. For instance,
Paragraph 8 states that “[t]he parties reserve the right to bring to the Court’s attention at
10 the time of sentencing . . . all relevant information concerning the Defendant’s
background, character and conduct[.]” J.A. 51 (emphasis added). Likewise, in Paragraph
11(b), “[t]he Defendant and this Office knowingly waive all right . . . to appeal whatever
sentence is imposed.” Id. (emphasis added). By contrast, the plea agreement expressly
reserved to only “the Defendant” the right to argue for a non-Guidelines-range sentence,
notwithstanding that the other sentence in that subparagraph imposes obligations on both
“[t]his Office and the Defendant.” J.A. 50.
The government contends that Paragraph 7 of the agreement, which obligates the
government to “recommend a reasonable sentence,” conferred on the government the
authority to request an above-Guidelines sentence so long as such a sentence is
“reasonable.” 1 J.A. 51. But Paragraph 12 of the plea agreement, which discusses the
consequences of Defendant engaging in specified types of misconduct, undermines the
government’s claim that Paragraph 7 confers on the government the authority to
recommend an above-Guidelines sentence.
Paragraph 12 provides that in the event that Defendant engaged in a specified form
of misconduct, the government is authorized “to make sentencing recommendations other
than those set out in this agreement.” J.A. 52. If, as the government claims, Paragraph 7
endows the government with the authority to recommend any “reasonable” sentence,
which the government stated at oral argument could be up to the statutory maximum,
1 Notably, counsel for the government represented that he did not, as a matter of course, argue for “reasonable” sentences above the Guidelines range. Indeed, he stated that he had never done so until this case. Oral Argument at 44:18–30.
11 then Paragraph 12 would confer no additional authority on the government in the event of
a breach by Defendant because the rules of prosecutorial ethics and federal law prohibit
the government from recommending—and a district court from imposing—an
unreasonable sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Moreover,
notwithstanding that the manifest purpose of Paragraph 12 is to deter post-plea
misconduct by Defendant, the government’s construction would not advance that purpose
because Defendant would face no additional consequence for engaging in misconduct. If
the government’s interpretation of “reasonable sentence” is correct and could include any
sentence up to the statutory maximum, regardless of the agreed-upon Guidelines range,
then the government has promised nothing to Defendant that could change as a result of
Defendant’s misconduct. As a result, Paragraph 12 would be meaningless. But canons
of construction counsel that we reject any construction of the plea agreement that would
render Paragraph 12 “superfluous, useless or inexplicable.” Holbrook, 368 F.3d at 428
(citation omitted).
Given the other aspects of the plea agreement indicating that the government did
not reserve the right to recommend an above-Guidelines sentence, Paragraph 7 renders
the plea agreement, at most, ambiguous on that point. In the face of such ambiguity, we
construe the agreement against the government as drafter. Barefoot, 754 F.3d at 246.
Additionally, when a plea agreement is ambiguous, courts have turned to evidence
outside of the four corners of the agreement to resolve the ambiguity. See Harvey, 791
F.2d at 302 (concluding that a plea agreement was ambiguous and examining other
evidence in the record to determine whether the government could prosecute the same
12 defendant for related criminal conduct in another federal district). Here, Defendant
introduced several contemporaneous plea agreements drafted by the same United States
Attorney’s Office, which expressly reserve to both parties the right to request a non-
Guidelines-range sentence. See, e.g., J.A. 329, ¶ 9 (“This Office and the Defendant agree
that both parties reserve the right to argue that this Court should sentence the Defendant
to a variant sentence outside of the advisory guideline range determined by the Court.”
(emphasis added)); J.A. 330, ¶ 9 (“Either party will be free to argue for a variance
sentence under 18 U.S.C. § 3353(a), but must notify the Court, the United States
Probation Office, and this Office, in writing, at least fourteen days in advance of the
sentencing of the facts and issues the party intends to raise in connection with any such
argument.” (emphasis added)); J.A. 331, ¶ 8 (“Both parties reserve the right to argue for
a sentence outside of the advisory guidelines range, and will notify the Court, the United
States Probation Officer, and government counsel at least fourteen days in advance of
sentencing of the facts or issues they intend to raise.” (emphasis added)); J.A. 332, ¶ 8
(“This Office and the Defendant each reserve the right to argue for a sentence outside of
the advisory guidelines range, and will notify the Court, the United States Probation
Officer, and each other at least 14 days in advance of sentencing of the facts or issues this
Office or the Defendant intends to raise.” (emphasis added)).
These agreements demonstrate that the government—and this U.S. Attorney’s
Office, in particular—knew how to draft language expressly reserving its right to argue
13 outside the Guidelines range. 2 That this plea agreement does not include such language
provides further evidence that the government did not negotiate the right to recommend
an above-Guidelines sentence.
Because the government argued for a sentence of 108 months, well above the
Guidelines range of 57–71 months, we conclude that the government breached the plea
agreement. Consistent with our precedent, when the government commits such a breach,
the sentence “is vacated and th[e] case remanded to a different district judge for
resentencing.” Peglera, 33 F.3d at 415; see also United States v. Brown, 500 F.2d 375,
378 (4th Cir. 1974). Resentencing must occur, regardless of whether the government’s
recommendation had any effect on the district judge’s ultimate sentencing decision. See
Santobello, 404 U.S. at 262 (remanding despite the district judge stating “that the
prosecutor’s recommendation did not influence him”). At resentencing, Defendant
should receive the benefit of his bargain—a sentence recommendation from the
government that does not go above the Guidelines range.
2 At oral argument, counsel for the government explained that prior to Gall, the form plea agreements for this U.S. Attorney’s Office restricted the government to arguing for a sentence within the Guidelines range unless the government specified that it would be seeking a sentence outside that range. However, following Gall, the government removed this language from the form agreements and replaced it with the “reasonable sentence” language found in Paragraph 7. Oral Argument at 34:13–51. This change appears to have injected some ambiguity into the government’s bargaining position, resulting in a potential trap for unwary defendants. However, regardless of whether the ambiguity was accidental or intentionally created by the government to strengthen its bargaining position, we resolve it against the government and in favor of Defendant. See Barefoot, 754 F.3d at 246.
14 B.
Defendant also maintains that the district court procedurally erred in failing to
address his argument that his hand injury warranted a lower sentence. Again, we agree.
This Court reviews the procedural reasonableness of a sentence “under a
deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41. In determining
procedural reasonableness, we assess “whether the district court properly calculated the
defendant’s advisory guidelines range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) factors, and sufficiently
explained the selected sentence.” United States v. Ross, 912 F.3d 740, 744 (4th Cir.
2019), petition for cert. docketed (U.S. June 13, 2019) (No. 18-9654).
When imposing a sentence, a district court must place on the record “an
‘individualized assessment’ based on the particular facts,” United States v. Blue, 877 F.3d
513, 518 (4th Cir. 2017) (quoting United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010)), demonstrating it “has considered the parties’ arguments and has a reasoned basis
for exercising [its] own legal decisionmaking authority,” Rita v. United States, 551 U.S.
338, 356 (2007). Although we do not require the district court to “robotically tick
through § 3553(a)’s every subsection,” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006), the district court “must address or consider all non-frivolous reasons for
imposing a different sentence and explain why he has rejected those arguments.” Ross,
912 F.3d at 744. The district court must set forth its explanation for rejecting a non-
frivolous argument for a lesser sentence in “a sufficiently detailed manner to allow this
Court to conduct a meaningful appellate review.” Blue, 877 F.3d at 519.
15 The length and scope of the trial court’s explanation is not subject to a bright line
rule. See id. at 518. But even though “[t]here is no mechanical approach to our
sentencing review,” this Court must be satisfied that the district court properly considered
the defendant’s arguments. Id. To that end, this Court has set aside a defendant’s
sentence as procedurally unreasonable when a district court failed to meaningfully
consider any non-frivolous argument by the defendant for a shorter sentence. See Ross,
912 F.3d at 745 (holding that the trial court abused its discretion in failing to address the
defendant’s non-frivolous argument that his mental health issues caused him to exhibit a
lack of remorse); Blue, 877 F.3d at 519–20 (holding that the district court abused its
discretion by failing to address six of the defendant’s eight non-frivolous sentencing
arguments, including his new employment and his co-defendant’s shorter sentence);
Lynn, 592 F.3d at 584–85 (holding that the district court abused its discretion in imposing
above-Guidelines sentence when the district court failed to address the defendant’s non-
frivolous arguments that his criminal history and the circumstances of his offense did not
justify such a sentence).
In the present case, Defendant argued on several occasions that the injuries he
suffered to his hand while being apprehended warranted imposition of a shorter sentence.
Defendant introduced medical records establishing the severity of his hand injury.
Defendant’s sentencing memoranda and arguments also cited two out-of-circuit cases
supporting the proposition that an injury caused by police could be considered a
“continuing punishment” that can be considered as a mitigating factor at sentencing. See
United States v. Clough, 360 F.3d 967, 970 (9th Cir. 2004) (“We . . . recognize that it is
16 theoretically possible that being shot by law enforcement personnel can constitute
punishment, thus allowing a court to fashion a reduced sentence.”); United States v.
Williamson, No. ED–CR–13–00021–JLQ, 2013 WL 4677838 at *2 (C.D. Cal. Aug. 29,
2013) (imposing a lower sentence because the defendant suffered severe and unexplained
injuries during his arrest).
Although neither this Court nor any district court in this circuit appears to have
identified injuries a defendant suffered while being apprehended as a mitigating factor for
purposes of sentencing, the out-of-circuit authorities cited by Defendant to the district
court establish that the argument was not frivolous. Additionally, the Sentencing
Commission has not specifically proscribed the argument, further indicating it was not
frivolous. See Koon v. United States, 518 U.S. 81, 83 (1996) (“A court’s examination of
whether a factor can ever be an appropriate basis for departure is limited to determining
whether the Commission has proscribed, as a categorical matter, that factor’s
consideration.”). 3 Notwithstanding that Defendant raised his non-frivolous mitigation
argument related to his hand injury in briefing and at oral argument, the district court
failed to address the argument. Although it gave a lengthy explanation for why it ordered
a sentence in excess of the Guidelines range, focusing on the specific circumstances of
the crime, it made no mention of Defendant’s hand injury.
3 Although we need not—and thus do not—decide the issue, Defendant’s arguments based on his hand injury also may be cognizable under Section 5H1.4 of the Guidelines, which identifies an “extraordinary physical impairment” as grounds for a downward departure.
17 The government argues that the trial court’s discussion of a different mitigation
argument raised by Defendant—the conditions of his incarceration at Chesapeake
Detention Facility—implicitly addressed Defendant’s argument that his hand injury
warranted a shorter sentence. To be sure, at times Defendant tied together his hand injury
argument with his assertion that the allegedly harsh conditions of confinement at the
Chesapeake facility—including the allegedly inadequate medical care for his hand
injury—constituted grounds for reducing his sentence. But the court’s statements at the
sentencing hearing indicate it did not consider Defendant’s hand injury argument as part
of the court’s discussion of the conditions of confinement at the Chesapeake facility. In
rejecting the conditions of confinement argument, the court explained that the conditions
at the facility did not warrant imposition of a shorter sentence because “[e]verybody is in
the same boat there.” J.A. 475–76. But not “everybody” at the facility required medical
treatment for a hand injury akin to that suffered by Defendant as part of his apprehension,
meaning that the district court’s “same boat” reasoning could not have applied to
Defendant’s hand injury argument.
Additionally, Defendant’s hand injury argument was not limited to the allegedly
inadequate medical treatment at the Chesapeake facility. Rather, the gravamen of
Defendant’s argument is that the injury he suffered to his hand during his apprehension
amounts to a “life-long” “punishment” that should be treated as a mitigating factor
weighing against “additional punishment” in the form of a longer term of incarceration.
J.A. 455–56 (emphasis added). Because Defendant’s hand injury argument was not
limited to his treatment at the Chesapeake facility, the district court’s discussion of
18 Defendant’s treatment at the Chesapeake facility could not have effectively disposed of
that argument.
Although our review of a district court’s sentencing explanation is deferential,
“[w]e cannot assume that a sentencing court truly considered a defendant’s nonfrivolous
arguments or his individual characteristics when the record fails to make it ‘patently
obvious.’” Blue, 877 F.3d at 521 (quoting United States v. Montes-Pineda, 445 F.3d 375,
381 (4th Cir. 2006)). We cannot say that it is “patently obvious” that the district court
considered Defendant’s non-frivolous hand injury argument.
Once an abuse of discretion is found, we typically analyze whether the error was
harmless. Lynn, 592 F.3d at 576. But because this case is already being remanded on
other grounds, see supra Part II.A, we need not inquire into whether this error was
harmless. Rather, we leave it to the district court to address Defendant’s hand injury
argument—and any other non-frivolous mitigation argument raised by Defendant—
during resentencing.
III.
In sum, we hold that the government breached its plea agreement with Defendant
when it recommended an above-Guidelines-range sentence. We further conclude that the
district court abused its discretion in failing to address a non-frivolous mitigation
argument repeatedly raised by Defendant.
Accordingly, Defendant’s sentence “is vacated and th[e] case remanded to a
different district judge for resentencing.” Peglera, 33 F.3d at 415; see also Brown, 500
F.2d at 378.
19 VACATED AND REMANDED