US v. James Ford

Filing 920100624

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4699

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES DONOVAN FORD, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:00-cr-00061-GCM-1)

Submitted:

May 24, 2010

Decided:

June 24, 2010

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ross H. Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Mark A. Jones, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: James sentence release. Donovan Ford appeals the from the twenty-four of his month

imposed

following Ford's

revocation

supervised plainly

Finding

sentence

procedurally

unreasonable, we vacate and remand for resentencing. The following colloquy occurred at sentencing immediately after the court found by a preponderance of the evidence that Ford had violated his supervised release: THE COURT: Revocation table provides for a guideline of 33 to 41 months. However, the guideline range exceeds the statutory authorized term and becomes 24 months' incarceration. And that's what the court orders. MS. MARROQUIN [Defense counsel]: Your Honor, with all due respect, we would just like to make some additional argument as to sentencing if this court would allow it. THE COURT: I don't think so. I think he's got 33 to 41 months under the guideline. Twenty-four months is all, that's authorized. Under the circumstances I think that's pretty light. MS. MARROQUIN: Your Honor, just for purposes of the record, we would just object that we believe that the sentence was procedurally and substantively unreasonable. Thank you. THE COURT: Very well.

MS. ESCARAVAGE [Assistant United States Attorney]: Your Honor, I do think the defendant does have a right to allocute. If we could just have that on the record. 2

THE COURT: If he wants anything to say, he may say so. Ford continually then addressed since the being court, stating from that he had He

worked

released

prison.

asserted that he had already spent time in a halfway house for his cocaine and marijuana use and that the remaining violations were based on lies that he had not been permitted to rebut. court then stated, "Okay. The

I see no reason to change what I have

announced as the proposed sentence of 24 months' incarceration and revocation." We review a sentence imposed as a result of a supervised release violation to determine whether the sentence is plainly unreasonable. Cir. 2006). United States v. Crudup, 461 F.3d 433, 437 (4th The first step in this analysis is a determination Id. at 438. generally This the

of whether the sentence is unreasonable. court, in determining reasonableness,

follows

procedural and substantive considerations employed in reviewing original sentences. Id. However, "[t]his initial inquiry takes

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, If a

656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 438).

sentence imposed after a revocation is not unreasonable, this court will not proceed to the second prong of the analysis --

3

whether the sentence was plainly unreasonable. at 439.

Crudup, 461 F.3d

When imposing a sentence, a district court must conduct an "individualized assessment" of the particular facts of the case, whether the court imposes a sentence above, below, or within the guidelines range. (4th Cir. 2009). United States v. Carter, 564 F.3d 325, 330 While "[t]his individualized assessment need

not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case at hand and adequate to permit meaningful appellate review." citation present[] omitted). nonfrivolous In Id. (internal quotation marks and "[w]here imposing a [the . . . parties] sentence

addition, for

reasons

[outside the advisory guidelines range,] . . . a district judge should address the party's arguments and explain why he has

rejected those arguments." and citation omitted).

Id. at 328 (internal quotation marks

An appellate court may not guess at a Id. at 329-30; see also

district court's sentencing rationale.

United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (applying Carter to revocation hearings, but noting that "[a] court need not be as as detailed it must or be specific when when imposing a a

revocation

sentence

imposing

post-

conviction sentence . . . ."). Here, regarding the an court did not permit Ford's counsel she to speak an

appropriate

sentence, 4

even

after

lodged

objection. allocute, it

Further, did

although

the

court

permitted he

Ford

to

not

address

the

arguments

raised,

specifically his work history and his prior punishment for some of the charged violations. an explanation for its Moreover, the court did not provide aside from stating that it

sentence,

calculated the Guidelines range and found it lenient.

Because

the district court has provided no basis on which to review its reasoning on appeal and because the court failed to even permit counsel to be heard, we conclude that Ford's sentence is

procedurally unreasonable.

See United States v. Gutierrez, 555

F.3d 105, 110 (2d Cir.) (recognizing that defendants have the "right to have an attorney address the sentencing court on

[their] behalf"), cert. denied, 129 S. Ct. 2024 (2009). Having found the sentence unreasonable, we now proceed to determine whether the sentence is plainly unreasonable. plainly unreasonable, a sentence must "run afoul of To be clearly

settled law."

Thompson, 595 F.3d at 548.

In Thompson, we noted

that "the district court's obligation to provide some basis for appellate review when imposing a revocation sentence . . . has been settled since at least [2007]." Id. Thus, we held that

"the district court's failure to provide any reasons for its sentence contravened clear circuit precedent and was, therefore, plainly unreasonable." Id. Applying Thompson's reasoning, we

conclude that Ford's sentence is plainly unreasonable. 5

Accordingly, resentencing.

we

vacate

Ford's

sentence

and

remand

for

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional

process. VACATED AND REMANDED

6