US v. James Ford
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
May 24, 2010
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
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,
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 --
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
[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
conviction sentence . . . ."). Here, regarding the an court did not permit Ford's counsel she to speak an
objection. allocute, it
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
calculated the Guidelines range and found it lenient.
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
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
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 ." 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
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
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