US v. Bryan Tate

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:08-cr-00462-HMH-1 Copies to all parties and the district court/agency. [999421848]. [13-4846]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4846

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRYAN DEVONAR TATE,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:08-cr-00462-HMH-1)

Submitted:

August 14, 2014

Decided:

August 25, 2014

Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.
William N. Nettles, United
States Attorney, Carrie Fisher Sherard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bryan Devonar Tate appeals the district court’s order
revoking his supervised release and sentencing him to sixteen
months’ imprisonment.

Counsel initially filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there
were no meritorious grounds for appeal but questioning whether
the

district

court

abused

its

discretion

by

supervised release and in imposing sentence.

revoking

Tate’s

After conducting

our review pursuant to Anders, we sought supplemental briefing
to address whether the district court adequately explained the
reasons for its sentence.

Although we affirm the revocation of

Tate’s supervised release, we conclude that the district court’s
explanation was insufficient; thus, we vacate the sentence and
remand for resentencing.
“A district court has broad discretion when imposing a
sentence

upon

revocation

of

supervised

release.”

States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).
in

examining

a

revocation

sentence,

we

United

Accordingly,

“take[]

a

more

deferential appellate posture concerning issues of fact and the
exercise

of

discretion

[G]uidelines sentences.”

than

reasonableness

review

United States v. Moulden, 478 F.3d

652, 656 (4th Cir. 2007) (internal quotation marks omitted).
will

affirm

a

revocation

for

sentence

that

falls

within

We
the

statutory maximum, unless we find the sentence to be “plainly
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unreasonable.”
Cir. 2006).

Pg: 3 of 5

United States v. Crudup, 461 F.3d 433, 437 (4th

In reviewing a revocation sentence, we must first

determine “whether the sentence is unreasonable,” using the same
general analysis employed to review original sentences.
438.

Only

if

substantively

we

find

a

unreasonable

sentence is “plainly” so.
unreasonable

if

it

sentence
will

to

we

afoul

procedurally

determine

Id. at 439.

“run[s]

be

of

Id. at

whether

or
the

A sentence is plainly
clearly

settled

law.”

United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
A revocation sentence is procedurally reasonable if,
among other factors, the court provides a sufficient explanation
for

its

chosen

sentence.

Id.

at

547.

In

explaining

its

sentence, the district court is not required to “robotically
tick

through

particularly
United

[18
when

States

v.

U.S.C.]
imposing

Powell,

(internal

quotation

defendant

or

imposing

a

§

marks

prosecutor

different

3553(a)’s

a

650

subsection,

within-Guidelines

F.3d

388,

omitted).

395

(4th

sentence.”
Cir.

2011)

than

However,

“[w]here

the

nonfrivolous

presents

sentence

every

reasons

for

that

set

forth

in

the

advisory Guidelines, a district judge should address the party’s
arguments
United

and

States

explain
v.

why

Carter,

he
564

has
F.3d

(internal quotation marks omitted).

rejected
325,

328

those
(4th

arguments.”
Cir.

2009)

Although a district court

imposing a revocation sentence need not provide as detailed an
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explanation as that required in imposing an original sentence,
it “may not simply impose sentence without giving any indication
of

its

reason

for

doing

(emphasis in original).

so.”

Thompson,

595

F.3d

This is “clearly settled law.”

at

547

Id. at

548.
Tate preserved his challenge to the adequacy of the
district court’s explanation by “drawing arguments from § 3553
for a sentence different than the one ultimately imposed” by the
district court.
Cir. 2010).

United States v. Lynn, 592 F.3d 572, 578 (4th

The Government has conceded that the court’s brief

statement was inadequate and that the court’s failure to provide
a

sufficient

explanation

renders

procedurally unreasonable.

Tate’s

sentence

plainly

Although we do not suggest that the

court did not listen to and consider the parties’ arguments, the
court’s

omission

of

any

explanation

violates our established precedent.
that

a

sufficient

perception
appellate

of

fair

review,”

explanation

is

sentencing”
Gall v.

and

United

for

its

chosen

sentence

Accordingly, being mindful
necessary
“to

“to

allow

States,

552

promote

for

the

meaningful

U.S.

38,

50

(2007), we vacate the sentence and remand for resentencing. *

*

Having found the district court’s revocation sentence to
be procedurally flawed, we have not considered its substantive
reasonableness. See Carter, 564 F.3d at 328 (“If, and only if,
we find the sentence procedurally reasonable can we consider the
(Continued)
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In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues.

This

court requires that counsel inform Tate in writing of his right
to petition the Supreme Court of the United States for further
review.

If Tate requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

and

materials

legal
before

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Tate.
facts

court

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

decisional process.

court

presented

would

not

in

the

aid

the

The mandate shall issue forthwith.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED;
MANDATE TO ISSUE FORTHWITH

substantive reasonableness of the sentence.” (internal quotation
marks omitted)).

5