US v. Montoyua Waller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:06-cr-00303-NCT-1. Copies to all parties and the district court/agency. [999624473].. [14-4497]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4497

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MONTOYUA WALLER,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00303-NCT-1)

Submitted:

June 30, 2015

Decided:

July 21, 2015

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed in part, vacated in part and remanded by unpublished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

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Kathleen
A.
Gleason,
Assistant
Federal
Public
Defenders,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Michael A. DeFranco, Assistant United States
Attorney, Alena K. Baker, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Montoyua

Waller

appeals

the

district

court’s

judgment

revoking his term of supervised release and sentencing him to a
term of 48 months’ imprisonment.

Waller’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal but
questioning

whether

Waller

committed

had

the
a

district

court

Grade

violation

A

properly

48-month sentence is substantively reasonable.
a

pro

counsel.

se

supplemental

reiterating

and

that

whether

his

Waller has filed
issues

raised

by

At our request, counsel and the government submitted

supplemental
plainly

brief

found

briefs

addressing

unreasonable

because

whether
the

Waller’s

district

adequately explain its chosen sentence.

sentence

court

failed

was
to

For the reasons that

follow, we affirm in part and vacate and remand in part for
resentencing.
To revoke supervised release, a district court need only
find a violation of a condition of release by a preponderance of
the evidence.
district

18 U.S.C. § 3583(e)(3) (2012).

court’s

ultimate

decision

to

revoke

“We review a
a

defendant’s

supervised release for abuse of discretion” and its “factual
findings

underlying

a

revocation

States v. Padgett, ___ F.3d ___,

for

clear

error.”

, Nos. 14-4625, 14-4627,

2015 WL 3561289, at *1 (4th Cir. June 9, 2015).
2

United

Credibility

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determinations made by the district court at revocation hearings
rarely are reversed on appeal.
F.3d

856,

858

(8th

Cir.

See United States v. Cates, 613
2010)

(“Witness

credibility

is

quintessentially a judgment call and virtually unassailable on
appeal.”

(internal

quotation

marks

omitted)).

Because

the

standard of proof is less than that required for a criminal
conviction, the district court may find that the defendant has
violated a condition of his supervised release based on its own
finding

of

new

criminal

conduct,

even

if

the

defendant

is

acquitted on criminal charges arising from the same conduct, or
if

the

charges

against

him

are

dropped.

United

States

v.

Stephenson, 928 F.2d 728, 732 (6th Cir. 1991).
Counsel

questions

whether

the

district

court

properly

found a Grade A violation based on Waller’s new criminal charges
of

felony

second

degree

kidnapping

and

felony

extortion.

Counsel argues that the court failed to give any weight to the
fact that Waller himself called the police during the offense,
and failed to consider how this bolstered Waller’s credibility.
Additionally, counsel argues that the district court erred in
denying Waller’s request that the government take more exemplars
of

the

victim’s

reopened

the

handwriting,

evidentiary

and

portion

that
of

the
the

court

should

hearing.

have

Counsel

further asserts that because all of the criminal charges upon
which

the

supervised

release

violation
3

was

based

were

later

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dismissed

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or

acquitted,

the

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finding

of

a

supervised

release

violation should be reversed.
We have thoroughly considered these claims in light of the
record, including the transcript of the revocation hearing at
which both Waller and the victim testified.

We find no clear

error in the district court’s factual findings, and that the
government proved the Grade A violation by a preponderance of
the

evidence.

Accordingly,

the

claims

lack

merit,

and

revocation of Waller’s supervised release was not an abuse of
discretion.
We now turn to the reasonableness of Waller’s sentence.

“A

district court has broad discretion when imposing a sentence
upon revocation of supervised release.”
738 F.3d 638, 640 (4th Cir. 2013).
sentence

if

it

is

within

plainly unreasonable.”
“When

reviewing

the

United States v. Webb,

“We will affirm a revocation

statutory

maximum

and

is

not

Id. (internal quotation marks omitted).

whether

a

revocation

sentence

is

plainly

unreasonable, we must first determine whether it is unreasonable
at all.”
2010).

United States v. Thompson, 595 F.3d 544, 546 (4th Cir.
A sentence is plainly unreasonable if it “run[s] afoul

of clearly settled law.”
A

revocation

district
considering

court
the

Id. at 548.

sentence
adequately
Sentencing

is

procedurally
explains

Guidelines’
4

the

reasonable
sentence

Chapter

Seven

if

the

after
policy

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statements

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and

the

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applicable

18

U.S.C.

§ 3553(a)

(2012)

factors.

See 18 U.S.C. § 3583(e) (2012); Thompson, 595 F.3d at

546-47.

“Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on
the

record

particular
Carter,

an

‘individualized

facts

564

of

F.3d

the

325,

case

330

assessment’

before

(4th

Cir.

United States, 552 U.S. 38, 50 (2007)).

it.”
2009)

based
United

on
States

(quoting

Gall

the
v.
v.

“A court need not be as

detailed or specific when imposing a revocation sentence as it
must be when imposing a post-conviction sentence, but it still
must provide a statement of reasons for the sentence imposed.”
Thompson, 595 F.3d at 547 (internal quotation marks omitted).
Counsel and Waller argued at sentencing that a sentence
below

the

policy

circumstances

statement

of

the

range

offense,

was

appropriate

specifically

due

the

to

the

victim’s

provocation of the offense conduct by stealing and abandoning
Waller’s
befriended

ex-wife’s
and

car.

mentored

Waller
the

pointed

victim,

that

out
he

that
himself

he

had

called

police multiple times as the offense was taking place, and that
he needed to stay out of prison in order to support his family.
Waller asserted that it was the victim’s idea to attempt to
extort money from his girlfriend to pay for the damage to the
car and the lost keys.

5

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When the court pronounced the sentence of 48 months, which
was at the low end of the policy statement range of 46 to 52
months, the court did not cite or track the 18 U.S.C. § 3553(a)
factors, explain what factors had been considered, or otherwise
articulate how it had weighed the parties’ arguments.
revocation

sentences

within

the

policy

statement

Even for
range,

“a

district court may not simply impose sentence without giving any
indication of its reasons for doing so.”
court

asked

questions

and

made

Id. at 547.

comments

at

the

While the
sentencing

hearing and was clearly very engaged, the court was cut off by
Waller after pronouncing the sentence, and thereafter did not
provide any explanation of its chosen sentence.
Accordingly, being mindful that a sufficient explanation is
necessary

“to

allow

for

meaningful

appellate

review

and

to

promote the perception of fair sentencing,” Gall, 552 U.S. at
50, we vacate the sentence and remand for resentencing.

We

express no opinion regarding the merits of Waller’s request for
a lower sentence.

In accordance with Anders, we have reviewed

the entire record and have found no other meritorious issues for
review.
court’s

We therefore affirm all other aspects of the district
judgment.

This

court

requires

that

counsel

inform

Waller, in writing, of his right to petition the Supreme Court
of the United States for further review.
that

a

petition

be

filed,

but
6

counsel

If Waller requests

believes

that

such

a

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petition would be frivolous, counsel may move in this court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on Waller.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.

AFFIRMED IN PART;
VACATED IN PART AND REMANDED

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