US v. Torry Markey McArthur
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:99-cr-00084-F-1 Copies to all parties and the district court/agency. .. [15-4675]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
TORRY MARKEY MCARTHUR,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Fox, Senior District Judge. (7:99-cr-00084-F-1)
Submitted: January 5, 2017
Decided: February 7, 2017
Before DUNCAN and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Defendant-Appellant Torry McArthur argues that his 60-month revocation
sentence is plainly unreasonable. Because the district court did not adequately explain its
upward variance using permissible sentencing factors, we vacate and remand for
After serving a prison sentence for possession with intent to distribute crack
cocaine, McArthur began a five-year term of supervised release. Before completion,
McArthur’s probation officer moved to revoke supervision, 2 listing five violations:
(1) criminal conduct--driving while impaired and fleeing to elude arrest; (2) criminal
conduct--robbery, assault and battery, drug trafficking and possession, and criminal
traffic offenses; (3) failure to notify the probation officer of contact with law enforcement
during violations (1) and (2); (4) testing positive for marijuana use; and (5) absconding
from supervision. McArthur served 42 months in state prison for the criminal offenses he
committed during supervision. J.A. 16.
We express no opinion of the sentence, per se. We ask only that the district court
articulate the rationale for it based on permissible factors to inform our review.
McArthur’s probation officer filed the original motion in February 2011, and
amended the motion in September 2015, explaining that he was unable to locate
McArthur for some unspecified amount of time during supervision.
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At his November 5, 2015, revocation hearing, McArthur did not contest the factual
predicates for revocation or the probation officer’s Sentencing Guidelines calculation of
30 to 37 months’ imprisonment. Rather, he argued for a sentence of time served based on
(1) his prior incarceration in state prison for the criminal offenses, (2) the skills he
developed in prison that would enable him to find employment, and (3) his access to
stable family resources in Texas.
The government sought a sentence within the
The district court first chronicled McArthur’s criminal offenses, noting that his
first charged violation occurred less than four months after supervision began. The court
then found that McArthur committed the violations and stated that it had “considered the
policy statements on revocation contained in Chapter Seven of the Sentencing Guidelines
as well as other relevant factors listed in Title 18 Section 3553(a).” J.A. 20. The court
Having weighed all of these factors it’s ordered and adjudged that the
supervision term heretofore granted be revoked and the defendant is
ordered committed to the custody of the bureau of prisons or its authorized
representative for imprisonment for a period of 60 months.
The court has departed upwardly in view of the defendant’s egregious
conduct. This sentence is imposed to afford adequate deterrence to
criminal conduct and to promote respect for the law.
The district court did not address McArthur’s arguments for a sentence below the
guidelines range or the government’s arguments for a sentence within it. McArthur
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This court will affirm a “revocation sentence unless it falls outside the statutory
maximum or is otherwise ‘plainly unreasonable.’” United States v. Padgett, 788 F.3d
370, 373 (4th Cir. 2015), cert. denied, 136 S. Ct. 494 (2015) (quoting United States v.
Crudup, 461 F.3d 433, 437 (4th Cir. 2006)).
Although the standard of review is
deferential, we cannot affirm a sentence that lacks adequate reasoning. United States v.
Moulden, 478 F.3d 652, 657 (4th Cir. 2007).
McArthur argues that the district court’s sentence was procedurally unreasonable
because the court (1) failed to adequately explain its sentence using permissible
sentencing factors and (2) did not address the arguments McArthur made in support of a
lower sentence. 3 We agree.
A district court commits procedural error if it does not sufficiently explain its
sentence with reference to permissible sentencing factors. See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Webb, 738 F.3d 638, 641 (4th Cir. 2013). During
revocation sentencing, a district court may not rely on several of the 18 U.S.C. § 3553(a)
factors it considers in initial sentencing, including: whether the revocation sentence
reflects the seriousness of the offense, promotes respect for the law, and provides just
Because we vacate for procedural unreasonableness, we do not address
McArthur’s substantive reasonableness challenge. See United States v. Carter, 564 F.3d
325, 330 n.4 (4th Cir. 2009).
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Crudup, 461 F.3d at 439; see 18 U.S.C. § 3583(e) (excluding
§ 3553(a)(2)(A) from the list of sentencing factors a district court may consider in
revocation proceedings). Although mere mention of these factors will not “automatically
render a revocation sentence unreasonable,” a district court commits procedural error if
its sentencing decision relies predominately on these factors. Webb, 738 F.3d at 641–42.
In addition to providing an adequate basis grounded in permissible sentencing
factors, the district court must also explain why it has rejected arguments for a different
sentence. See United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Here, the district court relied on impermissible sentencing factors and failed to
address McArthur’s arguments for a lower sentence. Promoting respect for the law is not
a proper basis upon which to impose a revocation sentence, and the court’s invocation of
McArthur’s “egregious conduct” appears to inappropriately rely on the seriousness of his
offenses. The district court did not explain how its deterrence rationale supported an
upward variance beyond what the government requested. See Gall, 552 U.S. at 50–51.
In addition, the court failed to acknowledge--let alone explain why it rejected--the
reasons McArthur presented for a lower sentence. See, e.g., United States v. Lynn, 592
F.3d 572, 581 (4th Cir. 2010). Because the court did not (1) adequately explain its
counterarguments, the sentence was procedurally unreasonable.
Once we determine that the sentence is procedurally unreasonable, we must decide
whether it is plainly unreasonable. Crudup, 461 F.3d at 439. A sentence is plainly
unreasonable if it “run[s] afoul of clearly settled law.” United States v. Thompson, 595
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F.3d 544, 548 (4th Cir. 2010). Given our prior recognition that a sentencing court must
base its decision on permissible factors and explain why it rejects the defendant’s
arguments for a more lenient sentence, we are constrained to conclude that the district
court’s sentence here was plainly unreasonable. See id.
Although we may be able to discern what led the court to impose the statutory
maximum, we cannot affirm a sentence based on our own guesswork. Carter, 564 F.3d
Accordingly, we vacate McArthur’s 60-month revocation sentence and
remand for resentencing. 4
VACATED AND REMANDED
We dispense with oral argument because the facts and legal conclusions are
adequately presented in the materials before this court and argument would not aid in the
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