United States v. Robbie Converse , 583 F. App'x 148 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBBIE JOSHUA CONVERSE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:08-cr-00116-JRS-1)
Submitted: August 26, 2014 Decided: September 9, 2014
Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Robert J. Wagner, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Michael R. Gill, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robbie Joshua Converse appeals the twenty-seven month
sentence imposed upon revocation of his term of supervised
release. On appeal, Converse argues that his sentence is
plainly procedurally unreasonable because the district court
failed to provide an adequate explanation for its chosen
sentence. * The Government concedes that the district court’s
explanation was inadequate and that therefore the court erred,
but argues that the error was harmless. We have fully
considered the Government’s contentions and are unable to
conclude that the absence of any explanation whatsoever for the
court’s chosen sentence was harmless in this case. Accordingly,
we vacate the judgment and remand for resentencing.
Procedural sentencing error, including a failure to
adequately explain the chosen sentence, is subject to review for
harmless error. Lynn, 592 F.3d at 576. “Under that standard,
the government may avoid reversal only if it demonstrates that
the error did not have a substantial and injurious effect or
influence on the result,” such that we “can say with fair
assurance that the district court’s explicit consideration of
*
Converse preserved his challenge to the adequacy of the
district court’s explanation “[b]y drawing arguments from [18
U.S.C.] § 3553 [(2012)] for a sentence different than the one
ultimately imposed” by the district court. United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010).
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the defendant’s arguments would not have affected the sentence
imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th
Cir. 2010) (internal quotation marks and alterations omitted);
see United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006)
(noting that government bears burden to establish harmless
error). Remand is appropriate when the absence of an
explanation prevents us from “determin[ing] why the district
court deemed the sentence it imposed appropriate” or “produce[s]
a record insufficient to permit even . . . routine review for
substantive reasonableness.” Lynn, 592 F.3d at 582 (internal
quotation marks omitted).
We find the Government’s arguments unavailing. First,
we conclude that the district court’s adoption of the parties’
requests for recommendations as to drug treatment and prison
location did not satisfy the court’s obligation to explain its
chosen sentence. United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010) (acknowledging that “in some cases, a district
court’s reasons for imposing a within-range sentence may be
clear from context,” but concluding that “those other statements
must actually relate to the imposed sentence, not some distinct,
penological or administrative question”). Nor does the fact
that the court made those recommendations mean that it also
considered the parties’ arguments for variant sentences.
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Second, and contrary to the Government’s suggestion,
our precedents make clear that district courts are not exempted
from the explanation requirement when they reject a motion for a
variant sentence in favor of a sentence within the advisory
policy statement range. Rather, the Government’s and Converse’s
arguments “for imposing a different sentence than that set forth
in the advisory Guidelines” established the court’s duty to
“address the part[ies’] arguments and explain why [it] has
rejected those arguments.” United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009).
Third, we reject the Government’s contention that the
lack of complexity of the parties’ arguments and the apparent
egregiousness of Converse’s violations render the court’s
failure to offer any explanation at all for its chosen sentence
harmless. Both parties thought Converse’s circumstances
sufficiently unique to urge upon the district court imposition
of a variant sentence from the advisory policy statement range.
Moreover, while the district court could have explained on the
record that it had considered and rejected Converse’s claims of
sincere remorse and specifically found that his violations were
egregious, it did not do so, and we decline to speculate on the
reasons for the court’s sentence. Id. at 329-30 (“[A]n
appellate court may not guess at the district court’s
rationale.”).
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The district court’s explanation of its revocation
sentence need not have been extensive or exhaustive, but the
omission of any statement of reasons for its actions cannot
suffice. Accordingly, being mindful that a sufficient
explanation is necessary “to promote the perception of fair
sentencing” and “to allow for meaningful appellate review,”
Gall v. United States, 552 U.S. 38, 50 (2007), we vacate the
judgment and remand for resentencing. In so ordering, of
course, we express no view as to the substantive reasonableness
of the vacated sentence. 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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