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No. 11-5191
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:
Judge
PER CURIAM:
In
December
2003,
Appellant
Javaad
Fisher
pleaded
Following
As
result,
his
term
of
supervised
release
was
first
revocation
imprisonment
original
term
of
to
be
sentence
followed
supervised
was
by
release.
for
the
term
of
six
remainder
of
his
Appellants
second
that
it
appeals
was
his
second
procedurally
revocation
unreasonable
sentence,
because
the
We agree.
late
2003,
Appellant
was
indicted
along
with
Ward Gang in the United States District Court for the Eastern
District of Virginia.
conviction
to
188
months
imprisonment
with
five
2005,
the
years
of
year
motion
Appellants
5,
sentence
2005,
on
requesting
another prosecution.
April
later,
the
based
March
that
on
his
17,
the
district
substantial
court
entered
court
reduce
assistance
Government
in
Accordingly, on
an
order
reducing
successful
completion
of
his
term
of
both
marijuana
and
cocaine.
The
petition
recommended
it
difficult
supervised
training
for
release;
program
for
(2)
him
he
data
to
comply
had
with
successfully
cabling;
and
(3)
the
terms
of
his
job
completed
he
had
expressed
After
hearing
these
arguments,
the
district
court
In so doing,
Appellant
served
the
six
month
term
of
second
revocation
petition,
alleging
Appellant
had
again
suspended
license;
(2)
failing
to
follow
the
probation
(3)
using
marijuana.
Again,
Appellants
revocation
Government
statutory
support,
argued
maximum
the
that
sentence
Government
Appellant
of
54
argued
months
that
should
receive
imprisonment.
Appellant
had
the
In
received
J.A. 44.
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
investigation;
providing
and
(3)
substantial
the
fact
that
assistance
Appellant
in
another
received
the
not
working
for
proposed sentence.
him
but
disagreed
with
the
Governments
the
fact
that
he
did
not
have
access
to
reliable
doesnt
Court[,]
district
J.A.
court
reflect
46,
the
and,
impose
conduct
therefore,
sentence
of
that
he
12
he
brings
requested
months
and
to
this
that
the
one
day.
J.A. 46-47.
7
procedurally
erred
by
failing
to
provide
contention,
arguing
that,
in
particularized
combination,
the
district
supervised
unreasonable.
release
unless
that
sentence
is
plainly
discretion
than
reasonableness
review
for
guidelines
F.3d at 657.
definition
of
plain
analysis.
that
we
use
in
our
plain
error
Specifically, an error is
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
revocation
fair
assurance,
consideration
of
the
that
the
defendants
district
arguments
courts
would
explicit
not
have
840
(4th
Cir.
2010)
quotation
marks
and
alterations omitted).
III.
A.
We
procedurally
first
Reasonableness
conclude
unreasonable. 6
Appellants
A
sentence
sentence
is
was
procedurally
10
Additionally,
[w]here
the
defendant
or
prosecutor
for
imposing
different
presents
non-frivolous
reasons
sentence
than
forth
that
set
in
the
advisory
Guidelines,
held
in
Carter,
jurisprudence
plainly
the
Supreme
precludes
Court's
any
recent
presumption
As
sentencing
that,
when
for
meaningful
appellate
review
and
to
promote
the
F.3d
(quoting
274,
283
(4th
Cir.
2012)
United
States
v.
Appellants
sentence
was
procedurally
hearing.
particular,
argued
for
the
at
the
first
second
time
revocation
that
(1)
he
hearing,
had
Appellant
been
actively
court
explicitly
addressed
Appellants
arguments
as
required by Carter.
that,
Appellants
in
this
case,
sentence
represented
150%
As
Accordingly,
in
this
case,
12
the
courts
sole
However, this
to
presume
that
the
Appellants arguments.
district
court
silently
considered
second
revocation
hearing,
Appellants
sentence
was
Appellants
sentence
was
procedurally unreasonable.
Having
concluded
that
be
plainly
unreasonable,
sentence
must
run
afoul
of
state
its
sentence.
reasons
See
for
Thompson,
imposing
595
F.3d
at
a
548
particular
(We
are
basis
for
appellate
review
when
imposing
revocation
sentence, however minimal that basis may be, has been settled in
this Circuit since at least Moulden.).
13
Accordingly, because
the
district
court
did
not
follow
this
clearly
settled
law,
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 Appellants arguments for a reduced
sentence
at
the
straightforward.
second
revocation
hearing
were
brief
and
We disagree.
different
arguments
revocation
hearing.
compelled
to
address
than
he
had
made
Accordingly,
the
district
these
arguments
at
and
the
first
court
was
provide
an
When
past
remanded
for
resentencing
because
we
could
not
This
is
significant
because,
as
no
individualized
for
its
decision
to
15
Fishers
sentence
is
procedurally
reasonable
and,
Accordingly, I
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).
court
required
to
place
on
the
record
an
the
majority
individualized
revocation
recounts,
explanation
sentencing
on
the
the
hearing,
district
record
explaining
at
court
gave
Fishers
that
it
an
first
would
court
would
solved,
give
him
therefore
imprisonment.
an
only
(J.A. 33).
opportunity
imposing
to
get
sentence
his
problems
of
months
(J.A. 34).
the
same
Assistant
U.S.
Attorney
(AUSA)
who
in detail the
numerous breaks Fisher had been afforded and his failure to take
advantage of the courts repeated leniency.
Fishers arguments
first
revocation
hearing,
were
unexceptional
and,
in
The
the
an
sentencing.
sentence
it
individualized
had
already
explanation
promisedand
forat
the
had
first
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.
judge, the same AUSA, and the same criminal defense attorney
were
present
at
both
hearings.
In
fact,
Fishers
attorney
admitted at oral argument that she was not surprised that the
court
imposed
sentence
is
this
sentence.
procedurally
Therefore,
reasonable
and
believe
is
Fishers
certainly
not
plainly unreasonable.
18
Even
assuming
the
district
court
committed
procedural
did
not
have
substantial
and
injurious
effect
or
influence on the result and we can say with fair assurance that
the district courts explicit consideration of [the defendants]
arguments would not have affected the sentence imposed.
Id. at
has
satisfied
that
standard
here.
The
The
same
The
face
significant
jail
time
if
he
violated
supervised
Id. at 839.
sentence
that
we
would
then
be
compelled
to
Clearly,
the
district
judge
handled
this
revocation
properly,
and
giving
behavior.
intention
result
in
the
defendant
one
last
chance
to
correct
his
determination
empty
under
formality
these
of
an
circumstances
unnecessary
would
remand.
United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012).
For these reasons, I respectfully dissent.
20