United States v. Thompson

595 F.3d 544, 2010 U.S. App. LEXIS 3740, 2010 WL 624118
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 23, 2010
Docket09-4247
StatusPublished
Cited by542 cases

This text of 595 F.3d 544 (United States v. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thompson, 595 F.3d 544, 2010 U.S. App. LEXIS 3740, 2010 WL 624118 (4th Cir. 2010).

Opinions

Vacated and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Judge MICHAEL joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

GREGORY, Circuit Judge:

The defendant, Barry Glen Thompson (“Thompson”), challenges the district court’s revoking his supervised release and sentencing him to eighteen-months imprisonment. Thompson claims the district [546]*546court’s failure to explain its chosen sentence was plainly unreasonable. We agree, vacate Thompson’s sentence, and remand for a new sentencing hearing.

I.

On January 20, 2009, the United States Probation Office petitioned to revoke Thompson’s supervised release. The petition alleged that Thompson had been arrested on two counts of battery on, and obstruction of, a police officer and that he had possessed methamphetamine. The petition also alleged that Thompson had twice previously violated his supervised-release terms by testing positive for narcotics.

At his revocation hearing, Thompson conceded that the government could prove the charged violations. The district court then determined that under the applicable, non-binding policy tables, Thompson faced between twelve- and eighteen-months imprisonment. Neither party objected to the calculation.

The court next gave each party an opportunity to argue for the appropriate sentence. The government emphasized that Thompson had committed battery on two police officers and had done so at 2:00 a.m., which it believed was relevant. Counsel for Thompson argued that it was his first violation, he had minor children, and that he had been gainfully employed since his initial release. Thompson also argued that he had notified the police of loose ammunition in the squad car following his arrest. Given this, Thompson sought a six-month prison term, followed by supervised release.

The court then sentenced Thompson to eighteen-months imprisonment followed by supervised release. Only when defense counsel requested that Thompson be allowed to self-report to prison did the court note that Thompson was probably not a flight risk, but that based on Thompson’s history, conduct, and characteristics, the court could not say that he was not a danger to the community. Thompson timely appealed.

II.

This Court reviews whether or not sentences imposed upon revocation of supervised release are within the prescribed statutory range and are not “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 439 (4th Cir.2006). The government argues that plain-error review applies here because Thompson never objected below to the adequacy of the district court’s sentencing explanation. As we explained in our recent decision United States v. Lynn, 592 F.3d 572 (4th Cir.2010), though, a defendant need only ask for a sentence outside the range calculated by the court prior to sentencing in order to preserve his claim for appellate review. Id. at 578, Because Thompson did so here by requesting a six-month sentence, rather than a sentence within the advisory range calculated by the district court, we decline to apply plain-error review and proceed to review whether his sentence is plainly unreasonable.

III.

When reviewing whether a revocation sentence is plainly unreasonable, we must first determine whether it is unreasonable at all. United States v. Moulden, 478 F.3d 652, 656 (4th Cir.2007); Crudup, 461 F.3d at 438. Thompson claims that his sentence is proeedurally unreasonable because the district court failed to provide an adequate explanation for its chosen sentence. We agree.

a.

Revocation sentences are governed by non-binding, policy statements in the Sen[547]*547tencing Guidelines Manual. U.S. Sentencing Guidelines Manual § 7(A)(1). Though a district court must consider the Chapter Seven policy statements and other statutory provisions applicable to revocation sentences, the court has broad discretion to impose a particular sentence. Crudup, 461 F.3d at 438; see Moulden, 478 F.3d at 656.

That discretion has some limits. A district court commits significant procedural error where it “fail[s] to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This requirement applies “[rjegardless of whether the district court imposes an above, below, or within-Guidelines sentence.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009) (internal quotation marks omitted). A 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.” Moulden, 478 F.3d at 657.

The district court provided no such statement here. Instead, it simply stated: “It’s the judgment of the Court the defendant be committed to the custody of the Federal Bureau of Prisons for a term of 18 months.” J.A. 42.

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595 F.3d 544, 2010 U.S. App. LEXIS 3740, 2010 WL 624118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thompson-ca4-2010.