US v. Tashell Waller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to strike [999254814-2] Originating case number: 3:98-cr-00192-JRS-1 Copies to all parties and the district court/agency. [999264961].. [13-4118]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4118

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TASHELL ROMAINE WALLER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:98-cr-00192-JRS-1)

Argued:

December 12, 2013

Decided:

December 23, 2013

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. Judge
Shedd wrote a dissenting opinion.

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Erik Sean Siebert, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON
BRIEF:
Michael
S.
Nachmanoff,
Federal
Public
Defender,
Alexandria, Virginia, Robert J. Wagner, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tashell Romaine Waller appeals her eighteen-month sentence,
imposed
For

following

the

revocation

reasons

that

follow,

of

her

we

supervised release.

vacate

and

remand

for

resentencing.
Waller

completed

her

incarceration

for

possession

with

intent to distribute crack cocaine and using and carrying a
firearm in relation to a drug trafficking offense in 2008 and
thereafter began serving a five-year term of supervised release.
Beginning in 2010, Waller violated several conditions of her
supervised release. She admitted to all of the violations, and
the district court gave her numerous opportunities to correct
her conduct. Finally, at her fourth and final violation hearing
held

in

February

supervised

2013,

release

and

the

district

sentenced

her

court

revoked

her

to eighteen months of

imprisonment.
At the final revocation hearing, the Government sought a
twenty-four-month

sentence,

Waller

conform

had

to

pointing
her

supervision and the fact that

to

the

conduct

to

numerous
the

chances

terms

of

Waller had attempted to evade

discovery of her drug use. In contrast, defense counsel sought
home detention in light of Waller’s responsibilities for her
children. Waller

personally

addressed

the

court. The district

court addressed Waller at some length and

noted in particular

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that

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Waller’s

attempt

to

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defeat

her

drug test was a knowing

and intentional effort to violate the court’s order and could
not

be

revoked

“left

without

Waller’s

discipline.” J.A. 55. The

some

supervised

release

and

court

imposed an eighteen-

month sentence.
At the February 2013 hearing, neither the court nor the
parties referred to the Guidelines Manual policy statement and
corresponding
for

table

commission

Waller,

in

suggesting

of the

criminal

grade

3-9
C

months

of

violations by

imprisonment

a person, like

history category I. See U.S.

Sentencing

Guidelines Manual § 7B1.4 (2012).
The issue before us is whether the district court committed
reversible error in failing to consider, on the record, Waller’s
applicable policy statement range.
Generally,

we

will

affirm

a

sentence

imposed

after

revocation of supervised release unless that sentence is plainly
unreasonable. See United States v. Crudup, 461 F.3d 433, 437
(4th Cir. 2006). A district court “need not be as detailed or
specific when

imposing

when imposing a
Thompson,
internal

595

a

revocation

post-conviction
F.3d

quotation

544,

sentence

as

it

sentence[.]” United

547

(4th

Cir.

omitted).

But,

we

2010)
have

must

be

States

v.

(citation
held

that

and
the

sentencing court “must consider the policy statements contained
in Chapter 7, including the policy statement range, as ‘helpful
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assistance,’ and must also consider the applicable [18 U.S.C.]
§ 3553(a) factors.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (quoting Crudup, 461 F.3d at 439); see also
Thompson, 595 F.3d at 547.
Here, the district court may well have considered many of
the applicable § 3553(a) factors, which the Government argues
were explicitly discussed in earlier revocation hearings. But the
last

such

hearing

occurred

two

years

earlier.

And

more

importantly, at the February 2013 hearing, the court failed to
indicate any consideration of the policy statement range.

1

The

Government also argues that the parties and court had a worksheet
setting

forth

appeal,

however,

Government,

the

over

Guidelines

range.

contains

no

such

Waller’s

objection,

The

certified

worksheet,
tardily

record

on

although

the

submitted

the

worksheet to the argument panel. In any event, the mere fact that
a Probation Officer prepared a worksheet does not establish, on
the present record, that the court actually considered the policy

1

The Government relies on United States v. Davis, 53 F.3d
638 (4th Cir. 1995), in which we held that the sentencing court
does not need to specifically mention the Guidelines range in
order to establish that it considered the relevant policy
statement. There are, however, critical differences between the
facts in Davis and the record before us here. In Davis, the
policy statement range was referenced repeatedly on the record
and the supervised release worksheet was put on the record. 53
F.3d at 642. Nothing of the sort occurred here. In the face of
such a record, Davis is plainly distinguishable and we therefore
decline the Government’s invitation to presume that the court
actually considered the policy statement range.
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statement range. We therefore

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conclude

that

Waller’s sentence

was procedurally unreasonable.
“For a sentence to be plainly unreasonable, . . . it must
run afoul of clearly settled law.” Thompson, 595 F.3d at 548
(citation omitted). In this case, the mandate that a sentencing
court must consider the Chapter 7 policy statement range has been
clearly settled since at least 2007, the date of our Moulden
decision.

2

Because

Waller’s

sentence

violated

Moulden’s

clear

language, it was plainly unreasonable.
The Government argues that any error was

harmless because

the district court’s explicit consideration of Waller’s policy
statement range would not have affected her sentence.
the contention is not without force,

we

cannot

Although

conclude

that

the error here was harmless.
As described above,
providing

the

an individualized

district

court

explanation

for

is
its

charged

with

decision

to

deviate from the policy statement range. Moulden, 478 F.3d at
657. We have carefully reviewed the court’s statements at the
sentencing proceeding. Those statements do indeed suggest that
it was unlikely to sentence Waller within the policy statement
range. Nevertheless, we are not unconditionally persuaded that
2

Indeed, we came to this precise conclusion in April of this
year in an unpublished decision, United States v. Stallins, 521
Fed. App’x 104, 107 (4th Cir. 2013). Of course, at the time of
Waller’s violation hearing in February 2013, the district court
did not have the benefit of our Stallins opinion.
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the court intended to deviate upward from the policy statement
range. Similarly, that the court may have articulated reasons
sufficient

to

support

an

eighteen–month

sentence

does

not,

standing alone, provide “fair assurance” that the court would
have given the same sentence if the record demonstrated that
it had considered

the

v.

F.3d

Boulware,

604

policy

statement
838

832,

range. United
Cir.

(4th

2010).

States
“For

a

procedural sentencing error to be harmless, the government must
prove that the error did not have a substantial and injurious
effect or influence on the result.” Thompson, 595 F.3d at 548
(internal citation omitted). Here, if the court had explicitly
considered

Waller’s

policy

statement

range,

“it

could

conceivably have given [her] a lower sentence.” Id.
For the reasons set forth, therefore, we vacate the judgment
and remand for resentencing in conformity with this opinion. 3

VACATED AND REMANDED

3

We deny as moot Waller’s motion to strike the supervised
release violation worksheet.
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SHEDD, Circuit Judge, dissenting:
The issue presented in this appeal is whether the district
court properly considered the Guideline Policy statements during
a supervised release revocation hearing. I believe the court did,
and therefore I respectfully dissent.
Here, Waller had an initial revocation hearing on March 22,
2011, at which hearing the district court clearly knew the policy
statement range was three to nine months. The district court
found

violations,

but

continued

sentencing

to

give

Waller

a

chance to correct her behavior. This leniency did not work, and
Waller violated again in May 2011. But in a further effort to
work with the defendant, the district court continued Waller on
her

supervised

release

under

the

same

terms

and

conditions.

Despite the district court’s best efforts to work with Waller,
she

violated

her

conditions

again

several

more

times

between

October and December 2012. At a third court hearing, after Waller
had failed two opportunities to follow her release conditions,
the district court imposed a sentence of eighteen months.
Waller now asserts that although the district court had the
range before it at her first revocation hearing, somehow it was
unaware

of

that

range

when

it

finally

imposed

a

sentence.

Waller’s argument is undercut by the precedent of this Circuit.
There is simply no question that the district court knew the
policy

statement

range

at

the
7

first

hearing.

The

government

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stated the range in open court, and Waller does not challenge the
fact

that

the

court,

the

government,

and

she

all

had

the

probation officer’s worksheet which reflected the three to nine
month range. Over the course of the hearings, it is absolutely
clear that the district court was well aware of Waller’s conduct
and the issues affecting her sentencing. The court listened to
argument and recommendations for sentencing from both Waller and
the government, and then imposed a sentence that was between the
two recommendations.
Here,
sentencing

to

comply

court

must

with

procedural

consider

the

reasonableness,

policy

statement

the

and

the

circumstances of the individual defendant, but our precedent does
not require that the consideration of the policy statement be
explicit:
The flaw in [the] argument here is [the] assumption
that the district court did not consider the relevant
policy statement. . . . The fact that the district
court did not mention the three to nine month range
provided by the policy statement is not dispositive. A
court need not engage in ritualistic incantation in
order to establish its consideration of a legal issue.
It is sufficient if, as in the case at bar, the
district court rules on issues that have been fully
presented for determination. Consideration is implicit
in the court's ultimate ruling.
United

States

(emphasis

v.

added).

Davis,
Because

53

F.3d

it

is

638,

642

abundantly

(4th
clear

Cir.
that

1995)
the

district court knew the policy statement range for Waller and

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gave

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both

sides

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the

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opportunity

to

present

arguments

appropriate sentence upon revocation, I would affirm.

9

on

the