US v. Misty Grafton
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:13-cr-00034-JPB-JSK-4. Copies to all parties and the district court. [999719974]. [15-4328]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4328
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MISTY AUTUMN GRAFTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
District Judge. (2:13-cr-00034-JPB-JSK-4)
Submitted:
November 20, 2015
Decided:
December 17, 2015
Before DUNCAN, DIAZ, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Stephen G. Jory, MCNEER, HIGHLAND, MCMUNN & VARNER, L.C.,
Elkins, West Virginia, for Appellant. William J. Ihlenfeld, II,
United States Attorney, Tara N. Tighe, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Misty Autumn Grafton appeals the district court’s judgment
sentencing her to 37 months’ imprisonment following revocation
of her probation.
is
plainly
On appeal, Grafton argues that her sentence
unreasonable.
We
vacate
Grafton’s
sentence
and
remand for resentencing.
We
will
probation
if
affirm
it
is
a
sentence
within
“plainly unreasonable.”
the
imposed
after
statutory
revocation
maximum
and
is
of
not
United States v. Moulden, 478 F.3d 652,
656-57 (4th Cir. 2007).
When reviewing whether a revocation
sentence is plainly unreasonable, we first assess the sentence
for unreasonableness, “follow[ing] generally the procedural and
substantive
considerations
original sentences.”
(4th
Cir.
we
employ
in
our
review
of
United States v. Crudup, 461 F.3d 433, 438
2006).
procedurally
that
A
reasonable
probation
if
the
revocation
district
court
sentence
is
considers
the
Chapter Seven advisory policy statement range and the 18 U.S.C.
§
3553(a)
(2012)
factors.
See
18
U.S.C.
§
3565(a)
(2012);
Moulden, 478 F.3d at 657.
Here, although the district court considered the § 3553(a)
factors, it failed to calculate and indicate consideration of
the applicable policy statement range.
We therefore conclude
that Grafton’s sentence is procedurally unreasonable.
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found
the
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sentence
unreasonable,
whether it is plainly unreasonable.
sentence
is
plainly
we
assess
next
“To determine whether a
unreasonable,
this
Court
looks
to
definition of ‘plain’ used in plain-error analysis.”
the
United
States v. Thompson, 595 F.3d 544, 547–48 (4th Cir. 2010).
“For
a sentence to be plainly unreasonable, . . . it must run afoul
of clearly settled law.”
Id. at 548.
The district court’s obligation to consider the advisory
policy statement range is settled law in this circuit.
478 F.3d at 657.
advisory
policy
Moulden,
Thus, the court’s failure to consider the
statement
range
renders
Grafton’s
sentence
plainly unreasonable.
Because Grafton did not preserve this claim for appellate
review, our review is for plain error.
52(b).
See Fed. R. Crim. P.
To establish plain error, Grafton must demonstrate that
(1) the district court committed an error; (2) the error was
plain;
and
(3)
the
error
affected
her
substantial
rights.
Henderson v. United States, 133 S. Ct. 1121, 1126 (2013).
Even
if
will
these
“exercise
requirements
[its]
are
discretion
met,
to
however,
correct
the
this
error
Court
only
if
it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.”
United States v. Nicholson, 676 F.3d
376, 381 (4th Cir. 2012) (internal quotation marks omitted).
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As stated, we recognize a sentencing error and find the
sentence to be plainly unreasonable because it runs afoul of
clearly established law.
461 F.3d at 439.
See Moulden, 478 F.3d at 656; Crudup,
Additionally, because the sentence imposed by
the district court was well above the advisory policy statement
range calculated by the probation officer, Grafton’s substantial
rights were affected by the error.
the
district
statement
term.
court
range,
it
calculated
might
have
We cannot tell whether, had
and
given
considered
Grafton
a
the
policy
lower
prison
See Thompson, 595 F.3d at 548.
Accordingly,
we
vacate
remand for resentencing.
Grafton’s
revocation
sentence
and
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.
VACATED AND REMANDED
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