US v. Theodore William Well

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [999621067-2] Originating case number: 1:13-cr-00249-CMH-1 Copies to all parties and the district court/agency. [999642206].. [15-4072]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4072

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THEODORE WILLIAM WELLS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:13-cr-00249-CMH-1)

Submitted:

August 6, 2015

Decided:

August 18, 2015

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Mark Diamond, Richmond, Virginia, for Appellant.
Dana J.
Boente, United States Attorney, Joseph V. Longobardo, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Theodore

William

Wells

pleaded

guilty

to

failure

to

register as a sex offender, in violation of 18 U.S.C. § 2250(a)
(2012),

and

the

district

court

sentenced

him

to

18

months’

imprisonment followed by 10 years of supervised release.

Wells

appeals, arguing that the district court failed to explain its
reasons for imposing this sentence.

We vacate and remand for

further proceedings consistent with this opinion.
In

explaining

required

to

a

sentence,

“robotically

tick

the

district

through

court

is

§ 3553(a)’s

not
every

subsection.”

United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006).

However, the court “‘must make an individualized

assessment
sentence,

based

on

‘applying

the
the

facts
relevant

presented’
§

when

3553(a)

imposing

factors

to

a
the

specific circumstances of the case’ and the defendant, and must
‘state

in

open

court

chosen sentence.’”

the

particular

reasons

supporting

its

United States v. Lymas, 781 F.3d 106, 113

(4th Cir. 2015) (quoting United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009)) (emphasis omitted).
We conclude that the district court failed to adequately
explain its sentence.

The court offered no explanation except

the general statement that it had considered the appropriate
§ 3553(a) factors and concluded that a sentence at the low end
of the Sentencing Guidelines was appropriate.
2

Furthermore, the

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Government

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has

not

attempted

court’s error was harmless.
F.3d

544,

548

(4th

Cir.

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to

establish

that

the

district

See United States v. Thompson, 595

2010)

(“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.” (internal quotation marks omitted)).
Additionally,

as

the

Government

concedes,

the

district

court relied on an incorrect calculation of the Guidelines range
applicable

to

supervised

release,

in

light

of

clarifying

amendments to the Guidelines range enacted after the presentence
report was drafted.

U.S. Sentencing Guidelines Manual § 5D1.2

cmt. n.1 (2014); see United States v. Price, 777 F.3d 700, 711
(4th

Cir.),

cert.

denied,

135

S.

Ct.

2911

(2015)

(“[T]he

Guidelines recommend that [a defendant convicted of failing to
register] receive a five-year term of supervised release, rather
than a term within a range of five years to life.”); United
States v. Collins, 773 F.3d 25, 31-32 (4th Cir. 2014), cert.
denied, 135 S. Ct. 1868 (2015).

Because the district court did

not have the benefit of the Guidelines amendment at the time of
Wells’ sentencing, “[t]his Circuit's practice is to vacate and
remand for resentencing.”

Collins, 773 F.3d at 32.

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Accordingly,
further

we

proceedings

vacate

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Wells’

consistent

with

sentence
this

and

opinion. *

remand
We

for
deny

Wells’ motion for leave to file a pro se brief. We dispense with
oral

argument

adequately

because

presented

in

the
the

facts

and

legal

material

before

contentions

are

this

and

court

argument will not aid the decisional process.
VACATED AND REMANDED

*

Wells’ additional arguments that the district court lacked
authority to impose a 10-year term of supervised release are
frivolous. The district court had statutory authority to impose
“any term of years not less than 5, or life” for “any offense
under section . . . 2250.” 18 U.S.C. § 3583(k) (2012) (emphasis
added).

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