United States v. Erick Gibbs , 897 F.3d 199 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERICK JEMONTA GIBBS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Fox, Senior District Judge. (7:13-cr-00110-F-1)
Argued: January 25, 2018 Decided: July 16, 2018
Before GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which
Judge Agee joined. Chief Judge Gregory wrote a dissenting opinion.
ARGUED: Sonya Maria Allen, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Donald Russell Pender, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Louis C. Allen, Acting Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-
Parker, First Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:
After Erick Gibbs admitted to four violations of the conditions of his supervised
release, the district court, upon giving its explanation for doing so, imposed the
Guidelines-recommended sentence of 24-months’ imprisonment. Gibbs contends that the
sentence was plainly procedurally unreasonable because the district court did not
adequately address his arguments in favor of a downward-variance sentence. We
conclude, however, that the record amply demonstrates that the district court, in reaching
its decision to impose the recommended sentence, considered Gibbs’s arguments for a
downward variance and addressed several of them, while highlighting the seriousness of
the violations, as well as Gibbs’s extensive criminal history. Accordingly, we affirm.
I
Gibbs pleaded guilty in August 2010 to possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1), and thereafter he was sentenced to 36 months’
imprisonment and 3 years’ supervised release.
Six months after Gibbs was released from prison, he was charged in state court for
possession of drug paraphernalia and, upon conviction, was sentenced to 45 days’
imprisonment, suspended, and 18 months’ probation. Then, in February 2013 and again
in August 2013, Gibbs tested positive for the use of marijuana. Finally, in February
2014, Gibbs participated in a conspiracy to traffic in heroin and maintained a vehicle,
dwelling, or place for controlled substances and, upon conviction, was sentenced to 19 to
32 months’ imprisonment. All four of these incidents violated the conditions of Gibbs’s
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supervised release, and Gibbs’s probation officer accordingly filed a motion for
revocation. At the revocation hearing, Gibbs admitted to all four violations, and the court
thus found “as a fact that the defendant violated the terms and conditions of his 2010
judgment.” The court concluded further that Gibbs’s drug trafficking offense was a
Grade A violation, the most serious. See U.S.S.G. § 7B1.1(a).
As provided by the policy statements in Chapter 7 of the Sentencing Guidelines,
Gibbs’s Grade A violation mandates revocation of supervised release, see U.S.S.G.
§§ 7B1.1(a)(1), 7B1.3(a)(1), and when a Grade A violation is coupled with Gibbs’s
Criminal History Category VI, a sentence of 33 to 41 months’ imprisonment is
recommended, see id. § 7B1.4. But because the maximum revocation sentence that
Gibbs could receive, given his underlying conviction, was 24 months’ imprisonment, see
18 U.S.C. § 3583(e)(3), that sentence became his recommended sentence, U.S.S.G.
§ 7B1.4(b)(1). Counsel for both parties recognized as much.
While presenting no evidence at the hearing, Gibbs’s counsel asked the court to
impose a downward-variance sentence of 12 months’ imprisonment based on three
“mitigation factors.” As she stated to the court, “There’s extreme hardship on his family.
There is the time already served [on the drug-trafficking conviction]. There may be,
thirdly, some discussion from the Government.”
On the first factor, which was counsel’s main argument, counsel stated that a
24-month prison term would deprive Gibbs’s three children of significant income and a
stable home environment and would impose hardship on Gibbs’s mother, who had
relocated to care for the children during his absence, as his wife was deceased. With
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respect to Gibbs’s earning potential, counsel noted that Gibbs “went through a program
called Youth Build, where he learned a significant amount of skills. He can build a house
from the ground up, framing, painting, landscaping.” She also pointed to Gibbs’s
employment, stating that Gibbs had been employed “at the House of Raeford, the chicken
plant” and at “Peters Landscaping Company, in Wilmington. He worked seven days,
from 10 to 3. So he has skills that he can build upon once he gets this behind him.”
Counsel also noted that Gibbs had been “working toward his GED.”
On the second mitigation factor, counsel noted that Gibbs had already served 14
months on his drug-trafficking conviction and therefore argued that he had already been
duly punished.
And on the third factor, she stated, “hopefully, the Government will discuss with
this Court” Gibbs’s assistance to law enforcement after his drug-trafficking conviction.
Counsel then summarized Gibbs’s justification for a downward variance:
Now, I’m asking for 12 months . . . [a]nd I do think that period of time will
be enough time to not only punish Mr. Gibbs, but certainly deter him from
any further conduct. But . . . it is [also] a reasonable time to be away from
the unique and extraordinary situation that he has with his family. So that
when he returns home, he can immediately jump in with the skills that he
has and be able to provide resources for them[.]
In response, the government argued that Gibbs’s Grade A violation was a “serious
charge” and that otherwise he had an extensive criminal history:
200 bags of heroin was the amount that was involved with the second
conviction in 2014. And Mr. Gibbs has had several prior drug convictions
and has had 12 convictions prior to his federal sentence. And it’s over a
six-year period. And several of those were assaultive in nature. He had
two assaults. He had multiple resisting officers. So he has not had a good
track record.
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The government noted further that one of the violations at issue — Gibbs’s possession of
drug paraphernalia — occurred within months after beginning his term of supervised
release. But the government did acknowledge Gibbs’s cooperation with law
enforcement, explaining that “after the state [offense] with the 200 bags of heroin,
[Gibbs] did meet with ATF and did assist them . . . with regard to criminal activity in the
Wilmington area.” The government allowed that although the information Gibbs
provided had not yet resulted in any charges, law enforcement officers believed that the
information was “helpful” and “truthful.”
After the district court offered Gibbs the opportunity to speak on his own behalf,
which he declined to do, the court imposed the Guidelines’ recommended sentence of
24-months’ imprisonment. In doing so, it explained:
On March 1st, 2013, the defendant pled guilty to misdemeanor possession
of drug paraphernalia in Brunswick County District Court and was
sentenced to 45 days’ imprisonment, suspended, 18 months of supervised
probation. On January 19, 2015, the defendant was arrested and charged
with felony conspiracy to traffic opium/heroin and felony maintain
vehicle/dwelling/place for controlled substances. On September 17th,
2015, defendant pled guilty to conspiracy to sell heroin and maintain a
vehicle/dwelling/place for controlled substances. The court imposed a 19
to 32 month term of imprisonment. On February 25th, 2013, and August
1st, 2013, the defendant tested positive for marijuana.
The defendant has a history of gang affiliation and has prior convictions for
assault, marijuana possession, resisting a public officer, possession of
stolen goods, trespass, possession of cocaine, possession of a firearm by a
felon, possession of a handgun by a minor, carrying a concealed weapon,
and driving while license revoked.
He has a scant employment record and little in the way of marketable job
skills. While on supervision, the defendant did make an effort to obtain his
GED. Upon consideration of Chapter 7 of the [Sentencing Guidelines
Manual] and the relevant factors listed in 18 U.S.C. § 3553(a), the
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defendant’s term of supervision is revoked and the defendant is ordered to
be committed to the custody of the [BOP] . . . for a period of 24 months.
When the court then asked defense counsel if she had anything further to add, she stated:
Yes, Your Honor. I would ask you to reconsider the range of 24 months
again — if nothing else, for the extreme hardship that it’s going to be on his
family at this point. They have done a significant amount to try to mitigate
this themselves. But him being away for two years, Your Honor, that’s
[something] I believe . . . the Court can consider. I do not — as the United
States has said, they believe that he should have . . . something coming off.
In response, the court said, “All right.” Then, after a “[b]rief pause in the proceeding” (as
noted in the transcript), the court stated, “No change. Twenty-four months.”
From the district court’s judgment entered January 12, 2017, Gibbs appealed.
II
Gibbs contends that his sentencing was plainly unreasonable as a procedural
matter because the district court failed to address or addressed inadequately his
arguments for a downward-variance sentence. In particular, his counsel argues:
Perhaps most troubling, the district court, with no explanation whatsoever,
found Mr. Gibbs had “little in the way of marketable job skills.” This
finding was strictly contrary to what defense counsel had asserted about her
client and had offered as a mitigating factor, and yet the court did not
explain why it believed Mr. Gibbs had little marketable job skills. Most of
us cannot “build a house from the ground up.”
The government responds that the court gave numerous reasons for imposing its
24-month term of imprisonment and that revocation sentences are subject to extra-
deferential review. It points out that Gibbs’s violations of his supervised-release
conditions were sufficiently severe “breaches of trust” to outweigh the reasons that he
advanced in favor of a downward variance. And it argues that the district court gave
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Gibbs sufficient individualized consideration when imposing his revocation sentence,
emphasizing that it is clear that the court considered his arguments for a downward
variance, such that the court committed no procedural error in sentencing him, let alone
any error that was plain.
The question thus presented is whether the district court provided an adequate
explanation when imposing Gibbs’s 24-month revocation sentence, given Gibbs’s
arguments for a downward variance.
At the outset, it is important to review what is demanded of district courts in
imposing revocation sentences. When a defendant appears before a court for revocation
of his supervised release, he is already subject to the sentence of his criminal judgment,
about which he presumably received an appropriate explanation, including an explanation
of the range of sentence that could be imposed and why he was receiving a particular
sentence. He was also advised of his supervised release and the conditions imposed for
it. Thus, as the Sentencing Guidelines emphasize, when a defendant violates those
conditions, his violation is not treated as new criminal conduct but rather as a “breach of
trust” in failing to abide by the conditions of his original sentence, for which the law
imposes “sanctions.” U.S.S.G. ch. 7, pt. A, introductory cmt. 3(b); see also United States
v. Crudup, 461 F.3d 433, 437–38 (4th Cir. 2006). When such a violation also involves
criminal conduct, the Guidelines leave punishment for that “to the court responsible for
imposing the sentence for that offense.” Id. Recognizing the distinction between original
sentencing and revocation sentencing, the Sentencing Commission has adopted
“revocation policy statements” that provide sanctions for “three broad grades of
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violations,” formalizing an approach that provides district courts with “greater flexibility”
than would be provided by specific revocation guidelines to determine the appropriate
sanction. U.S.S.G. ch. 7, pt. A, introductory cmt. 3.
Consistent with this framework, we have held that a court of appeals reviewing a
district court’s revocation sentence must adopt a more “deferential appellate posture”
than when reviewing original sentences to “account [for] the unique nature of supervised
release revocation sentences.” Crudup, 461 F.3d at 438–39 (citations omitted); see also
United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (describing the “modified
reasonableness analysis” for reviewing sentences imposed upon revocation of probation
and supervised release) (internal quotation marks omitted). In this vein, “a [district]
court’s statement of its reasons for going beyond non-binding policy statements in
imposing a [revocation] sentence . . . need not be as specific as has been required when
courts departed from guidelines that were, before Booker, considered to be mandatory.”
Crudup, 461 F.3d at 439 (quoting United States v. Lewis, 424 F.3d 239, 245 (2d Cir.
2005)). For these reasons, while original sentences are reviewed for “reasonableness,”
we have recognized that even an unreasonable revocation sentence may stand unless it is
plainly unreasonable. Id. at 438–39.
This structure of appellate review of revocation sentences still addresses distinctly
both procedural reasonableness and substantive reasonableness, but on the more
deferential basis noted. A revocation sentence passes procedural muster if it is supported
by “a sufficient explanation so that we may effectively review the reasonableness of the
sentence,” which must encompass “an assurance that the sentencing court considered the
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[applicable sentencing] factors with regard to the particular defendant before [it] and also
considered any potentially meritorious arguments raised by the parties with regard to
sentencing.” Moulden, 478 F.3d at 657. And a sentence passes substantive muster if the
totality of the circumstances indicates that the court had a “‘proper basis for its
conclusion’ that the defendant should receive the sentence imposed.” United States v.
Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (quoting Crudup, 461 F.3d at 440).
As with original sentencing, a revocation sentence that is within the recommended
Guidelines range is “presumed reasonable.” United States v. Webb, 738 F.3d 638, 642
(4th Cir. 2013). And although the procedural and substantive aspects of review are
distinct, less explanation is required for such a sentence than for a sentence that departs
from the Guidelines. See United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010)
(noting that less explanation is required when imposing a within-Guidelines range
revocation sentence); see also Rita v. United States, 551 U.S. 338, 356–57 (2007)
(applying same principle in the context of original sentencing). Similarly, “a major
departure [from the Guidelines] should be supported by a more significant justification
than a minor one.” Gall v. United States, 552 U.S. 38, 50 (2007); see also Slappy, 872
F.3d at 208 (concluding that the district court’s “failure to address [the defendant’s]
arguments in favor of a within-policy-statement-range sentence constitute[d] procedural
error”) (emphasis added); id. at 209 (explaining that “the court’s failure to address
Slappy’s nonfrivolous arguments in favor of a within-range sentence was compounded by
its failure to explain why it was necessary to impose the statutory maximum sentence”).
9
In this case, therefore, the dispositive question reduces to whether, in context, the
district court’s explanation of Gibbs’s sentence provided a sufficient assurance that it
considered his arguments for a downward variance. See Moulden, 478 F.3d at 657; see
also Slappy, 872 F.3d at 210 (holding that the explanation “must provide enough . . . to
assure this Court that it considered the parties’ arguments and had some basis for
choosing the imposed sentence”).
Gibbs’s primary argument for why he should have received a downward-variance
sentence was that the recommended sentence would cause hardship to his family due to
both his absence and the loss of income that he otherwise could provide. In support of
this argument, Gibbs’s counsel asserted that Gibbs had certain job skills and a high
degree of employability, though Gibbs provided no evidence to support those assertions.
He now maintains that the district court responded to his arguments with a single
sentence — that Gibbs had “a scant employment record and little in the way of
marketable job skills” although he “did make an effort to obtain his GED” — contrary to
his counsel’s representations at the revocation hearing. Gibbs also emphasizes that, in
response to his request to reconsider the 24-month sentence “for the extreme hardship
that it’s going to be on his family,” the court stated simply, “No change.”
We conclude, however, that the record supports the district court’s conclusion that
Gibbs had a “scant” employment record and job skills. Counsel for Gibbs stated at the
revocation hearing that Gibbs went through a program called “Youth Build” “where he
learned a significant amount of skills” relating to building a house. But she provided no
evidence that Gibbs ever applied that learning and used those skills. Indeed, in relating
10
Gibbs’s job experience, counsel for Gibbs stated only that he had been employed at a
chicken plant and at a landscaping company, neither of which involved building a house
or even working on a house, and she never specified the duration of those positions.
Thus, it was hardly “contrary” to the record for the court to have concluded that Gibbs
had only scant work experience and job skills.
And as to the hardship that a 24-month sentence would impose on Gibbs’s family,
the court clearly considered it. Indeed, when explicitly asked to do so, the court stated,
“All right.” After giving the argument thought, however, the court announced that it was
not prepared to deviate from the 24-month recommendation. In the same way, the court
considered and rejected Gibbs’s request for a downward variance based on his
cooperation with law enforcement. When Gibbs’s counsel asked the court to consider a
downward variance, “as the United States has said they believe that he should have . . .
something coming off,” the court’s response of “All right” also covered that request.
But, as noted, the court rejected the request, determining to remain with the
recommended 24-month sentence.
This consideration of Gibbs’s arguments comports with the standard for original
sentencing articulated in Rita and, a fortiori, satisfies the more relaxed standard for
revocation sentencing. As the Supreme Court stated in Rita, “[w]here a matter is as
conceptually simple as in the case at hand and the record makes clear that the sentencing
judge considered the evidence and arguments, we do not believe the law requires the
judge to write more extensively.” 551 U.S. at 359 (emphasis added); see also id. at 359–
60 (recognizing that the sentencing court did not address all of the defendant’s
11
arguments); Slappy, 872 F.3d at 210 (requiring the court to “provide enough” to indicate
“that it considered” the defendant’s arguments) (emphasis added).
Juxtaposing the district court’s responses to Gibbs’s arguments for leniency with
the court’s affirmative statements for why it was imposing the 24-month sentence — the
four incidents that violated the terms of Gibbs’s supervised release, including two
convictions, one for possession of drug paraphernalia and the other for conspiracy to
traffic in heroin, as well as Gibbs’s long criminal history involving “gang affiliation [and]
convictions for assault, marijuana possession, resisting a public officer, possession of
stolen goods, trespass, possession of cocaine, possession of a firearm by a felon,
possession of a handgun by a minor, [and] carrying a concealed weapon” — the court
clearly and properly manifested its reasons for giving the recommended 24-month
sentence. The court’s comments about Gibbs’s arguments, while not extensive,
nonetheless do enable us to “effectively review the reasonableness of [Gibbs’s] sentence”
with the “assurance” that the court “considered any potentially meritorious arguments
raised by [Gibbs] with regard to [his] sentencing.” Moulden, 478 F.3d at 657 (emphasis
added). If the court had determined to depart from the Guidelines, perhaps a more
fulsome explanation might have been required. See Gall, 552 U.S. at 50. But in this
case, the district court imposed the recommended Guidelines sentence, and the procedure
that the court followed in imposing the revocation sentence was not unreasonable — and
certainly not plainly unreasonable. See Crudup, 461 F.3d at 439; see also Slappy, 872
F.3d at 208 (noting that “[i]f a revocation sentence — even an unreasonable one — is not
‘plainly unreasonable,’ we will affirm it”).
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Gibbs argues that our decisions in Thompson and Slappy, where we reviewed and
vacated revocation sentences, support his contention that the district court’s sentence here
was procedurally unreasonable. But we find his reliance on these cases misplaced.
In Thompson, after recognizing that a “district court commits significant
procedural error where it ‘fail[s] to adequately explain the chosen sentence,’” 595 F.3d at
547 (quoting Gall, 552 U.S. at 51) (alteration in original), we vacated the revocation
sentence, even though it was within the range recommended by the Sentencing
Guidelines, because the sentence was supported by no explanation whatsoever. As we
observed, the district court “simply stated: ‘It’s the judgment of the Court the defendant
be committed to the custody of the Federal Bureau of Prisons for a term of 18 months.’”
Id. at 547. We explained aptly:
We may be hard-pressed to find any explanation for within-range,
revocation sentences insufficient given the amount of deference we afford
district courts when imposing these sentences; but a district court may not
simply impose sentence without giving any indication of its reasons for
doing so.
Id. Here, of course, the district court did in fact give its reasons for the sentence imposed,
and it considered and addressed, although briefly, Gibbs’s arguments for a downward
variance. Contrary to Gibbs’s argument, Thompson thus supports upholding the
revocation sentence of the district court as procedurally reasonable.
Nor does our decision in Slappy compel a different result. During the revocation
hearing, the defendant asked the district court to impose a term of imprisonment within
the range recommended by the Sentencing Guidelines, which was 7 to 13 months’
imprisonment, advancing several arguments for leniency related to “her post-
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incarceration conduct and attempts at rehabilitation.” Slappy, 872 F.3d at 205. Instead of
imposing a within-Guidelines sentence, however, the district court imposed an upward-
variance sentence of 36 months’ imprisonment — the statutory maximum — “without
addressing [the defendant’s] arguments.” Id. at 206; see also id. at 208 (noting that the
district court “did not so much as mention her arguments”). In those circumstances, we
vacated the revocation sentence, concluding that “[b]ecause the court failed to address
Slappy’s nonfrivolous arguments in favor of a within-range sentence or to explain why
the statutory maximum sentence was necessary, we find that Slappy’s revocation
sentence [was] procedurally unreasonable.” Id. at 209–10 (emphasis added). Thus, while
the district court in Slappy entered an upward-variance sentence without even
“mention[ing] [the defendant’s] arguments,” id. at 210, the district court here imposed a
within-Guidelines sentence and did address, albeit briefly, Gibbs’s arguments. More
importantly, the record here, taken as a whole, makes clear that the court, as required,
considered those arguments.
At bottom, we conclude that the district court imposed a procedurally reasonable
revocation sentence, and, because Gibbs does not argue that his sentence was
substantively unreasonable, we affirm. In doing so, we recognize that because Gibbs’s
revocation sentence is not unreasonable, it certainly cannot be plainly so, as would be
required for us to disturb it. See Slappy, 872 F.3d at 208; Crudup, 461 F.3d at 439.
AFFIRMED
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GREGORY, Chief Judge, dissenting:
The majority ignores established Supreme Court and Fourth Circuit precedent that
requires a sentencing court to address a defendant’s nonfrivolous arguments for a
downward variance in sentencing. * Disconcertingly, the majority contends that the
“record amply demonstrates” that the district court here addressed Erick Gibbs’s four
nonfrivolous arguments for a downward variance: his extreme family hardship, the time
he had already served, his employability, and the substantial assistance he provided in
murder, bank robbery, and drug investigations. But the majority’s characterization is
blatantly contradicted by the record itself. The district court made no mention of three of
Gibbs’s four arguments, much less explained its reasoning. The majority conveniently
omits that a police detective was present at sentencing to testify about Gibbs’s assistance
in the investigations, and that the district court declined to hear from him without any
explanation or further comment concerning the Government’s mitigating proffer. The
majority further knits from whole cloth an interpretation of the words “all right” and a
brief pause—made after the sentence was imposed—that, in its view, miraculously
addressed not one but three of Gibbs’s arguments. By resting much of its analysis on this
*
Gall v. United States, 552 U.S. 38, 51 (2007) (holding that a district court must
“adequately explain the chosen sentence”); United States v. Blue, 877 F.3d 513, 518 (4th
Cir. 2017) (holding that an adequate explanation requires an individualized assessment
that considers the defendant’s nonfrivolous arguments for a downward departure); United
States v. Slappy, 872 F.3d 202, 207–08 (4th Cir. 2017) (same); United States v.
Thompson, 595 F.3d 544, 547–48 (4th Cir. 2010) (same); United States v. Lynn, 592 F.3d
572, 581–82 (4th Cir. 2010) (same); United States v. Carter, 564 F.3d 325, 328–29 (4th
Cir. 2009) (same).
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pause rather than anything the district court actually said, the majority implicitly
concedes that the court sentenced Gibbs to 24 months’ imprisonment without any
reference to his nonfrivolous mitigating arguments. Further troubling, the majority
conflates substantive and procedural reasonableness, applying our substantive
reasonableness presumption to Gibbs’s procedural challenge.
By papering over the district court’s failings, the majority essentially concludes
that Gibbs’s extensive criminal history excused the district court from its clearly
established obligation to say something about Gibbs’s nonfrivolous arguments. This flies
in the face of our caselaw. Tellingly, the majority does not even cite our decision in
United States v. Blue, let alone attempt to distinguish this clear and controlling circuit
precedent. I am compelled to dissent.
I.
In 2010, Gibbs pled guilty to Possession of Firearm by a Convicted Felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced Gibbs to
36 months in prison, followed by an equivalent period of supervised release. Gibbs
served his prison sentence and began his term of supervised release on June 29, 2012.
In January 2015, Gibbs’s probation officer filed a Motion for Revocation on
Offender Under Term of Supervised Release on the basis of his use of a controlled
substance (marijuana), as well as two instances of criminal conduct. First, the probation
officer had uncovered the fact that Gibbs had pled guilty to a North Carolina
misdemeanor Possession of Drug Paraphernalia charge in March 2013, for which he was
16
sentenced to 45 days in prison and 18 months of supervised probation. Second, Gibbs
was arrested in January 2015 and charged with felony Conspiracy to Traffic
Opium/Heroin, as well as felony Maintenance of a Vehicle/Dwelling/Place for Controlled
Substance. In October 2015, Gibbs’s probation officer filed an Amended Motion for
Revocation on Offender Under Term of Supervised Release to reflect Gibbs’s guilty plea
to the heroin-selling charge, for which Gibbs was sentenced to 19 to 32 months’
imprisonment.
At his revocation hearing, Gibbs admitted to violating the terms and conditions of
his supervised release as described above. The parties agreed that it was a Grade A
violation with a statutory maximum sentence of 24 months, as well as a Guidelines range
of 24 months.
Gibbs made four nonfrivolous arguments in favor of a shorter sentence of 12
months. First, Gibbs argued that he had already served 14 months in state prison for the
offenses underlying the violation of his supervised release. Second, he argued that a
prolonged prison sentence would bring extreme hardship to his family, who attended
Gibbs’s sentencing hearing in a show of support. Because the mother of Gibbs’s three
young children is deceased, Gibbs’s mother had taken a significant reduction in pay to
relocate to Wilmington, North Carolina, to help care for the children. Gibbs argued that
his lengthy imprisonment would thus strain the emotional lives of his children—who
have a “unique bond” with their father—as well as subtract his earnings from the
household. Third, Gibbs described a work program that he had completed, which
provided him with the skills to “build a house from the ground up,” including framing,
17
painting, and landscaping. Gibbs had also been previously employed by two separate
employers. At the time of the hearing, Gibbs was also pursuing his GED.
Finally, in addition to his own mitigating arguments, Gibbs adopted the
Government’s statements recounting his cooperation in providing law enforcement with
helpful information regarding criminal activity. The Government explained that “to his
credit,” Gibbs had provided agents with truthful information about a murder, a bank
robbery, and drug activity in the Wilmington area. The Government’s agent-witness was
available to further elaborate on Gibbs’s cooperative behavior, but the court declined to
hear from him.
At sentencing, the district court reiterated Gibbs’s violations of supervised release
and summarized Gibbs’s criminal background as follows:
The defendant has a history of gang affiliation and has prior convictions for
assault, marijuana possession, resisting a public officer, possession of
stolen goods, trespass, possession of cocaine, possession of a firearm by a
felon, possession of a handgun by a minor, carrying a concealed weapon,
and driving while license revoke.
J.A. 29. The court added that Gibbs “has a scant employment record and little in the way
of marketable job skills” and mentioned only in passing Gibbs’s efforts to obtain his
GED. Id. It then revoked Gibbs’s supervised release and sentenced him to a 24-month
term of imprisonment. By way of explanation, the court said only:
Upon consideration of Chapter 7 of the United States Sentencing
Guidelines and the relevant factors listed in 18 U.S.C. Section 3553(a),
the defendant’s term of supervision is revoked, and the defendant is
ordered to be committed to the custody of the Bureau of Prisons or its
authorized representative for a period of 24 months.
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Id. When Gibbs requested that the court reconsider the 24-month range, the court
replied, “All right,” paused briefly, and then declared, “No change. Twenty-four
months.” J.A. 30.
II.
As the majority opinion notes, district courts have broad discretion in the context
of revocation sentencing. United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).
That discretion, however, is not unlimited. United States v. Thompson, 595 F.3d 544,
547 (4th Cir. 2010). While we assume a more deferential appellate posture when
reviewing revocation sentences, United States v. Moulden, 478 F.3d 652, 658 (4th Cir.
2007), we nonetheless “follow generally the procedural and substantive considerations”
used in reviewing original sentences. United States v. Crudup, 461 F.3d 433, 438–39
(2006).
This Court will affirm a revocation sentence if it is within the prescribed statutory
range and is not “plainly unreasonable.” Id. at 439. To find a sentence plainly
unreasonable, we must first determine whether it is “unreasonable at all.” Thompson, 595
F.3d at 546. The unreasonableness inquiry proceeds in two steps. Gall v. United States,
552 U.S. 38, 51 (2007). First, we evaluate the sentencing court for procedural
reasonableness. Id. Errors amounting to procedural unreasonableness include “failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Id. Only if no
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significant procedural errors were committed do we go on to evaluate substantive
reasonableness. Id. Unlike the procedural analysis, the substantive analysis “take[s] into
account the totality of the circumstances” surrounding a defendant’s sentencing. Id.
Here, Gibbs challenges only the procedural reasonableness of his revocation sentence.
Gibbs’s sentencing was marred by two significant procedural errors. First, the
district court failed to address Gibbs’s nonfrivolous arguments in favor of a downward
variance. Second, the district court failed to adequately explain its imposed sentence. By
affirming the district court’s sentence despite these procedural errors, the majority
opinion fails to follow the binding law of this Circuit and the Supreme Court.
A.
For a revocation sentence to be procedurally reasonable, a court must respond to
the defendant’s nonfrivolous mitigating arguments. United States v. Lynn, 592 F.3d 572,
585 (4th Cir. 2010); United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017). Both
Supreme Court and Fourth Circuit precedent makes clear that the adequacy of a
sentencing court’s explanation centers on its acknowledgment of the parties’ arguments.
See Rita v. United States, 551 U.S. 338, 339 (2007); Lynn, 592 F.3d at 584. As such, a
sentencing court’s obligation extends to each and every argument the defendant makes.
United States v. Blue, 877 F.3d 513, 516, 519 (4th Cir. 2017) (holding that the district
court failed to adequately address the defendant’s mitigating arguments when it
addressed only two out of eight).
At Gibbs’s sentencing hearing, Gibbs presented four nonfrivolous arguments to
the district court: (1) the time Gibbs already served for the offenses underlying his
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release violation, (2) the emotional and financial hardship that a longer sentence would
impose on Gibbs’s family, (3) Gibbs’s good prospects for future employment, and (4) the
assistance Gibbs provided Wilmington-area law enforcement (adopted from the
Government’s statements).
Unlike the majority, I see no place in the record where the district court
acknowledged Gibbs’s nonfrivolous arguments, much less explained why he rejected
them. Slappy, 872 F.3d at 207; Lynn, 592 F.3d at 585. Even if one were to take the
court’s mention that Gibbs has “little in the way of marketable job skills”—an
observation that appears plainly mistaken in light of the undisputed facts in the record—
as evidence that the court considered Gibbs’s second argument, the court still entirely
overlooked three of Gibbs’s four mitigating arguments. Blue, 877 F.3d at 516, 519. In
announcing its chosen sentence, the court made no mention of Gibbs’s time already
served, his family’s circumstances, or his assistance to the Government.
The district court’s failure to mention Gibbs’s family is particularly troubling, as
the bulk of Gibbs’s mitigation revolved around his family’s unique circumstances, such
as the fact that the mother of his three small children is deceased. Similarly, the district
court uttered not a single word about Gibbs’s assistance to Wilmington-area law
enforcement with regard to several serious crimes, including a bank robbery and a
murder. The fact that the court declined to hear from the law enforcement agent who
worked with Gibbs—who was present and available to testify at Gibbs’s hearing—
exemplifies the court’s demonstrated lack of engagement with Gibbs’s nonfrivolous
mitigating arguments.
21
Sympathetic to the natural idiosyncrasies of court proceedings, we have
recognized that acknowledgment of the parties’ arguments may be clear from the context
of the court’s comments. See United States v. Montes-Pineda, 445 F.3d 375, 381 (4th
Cir. 2006). For example, appellate courts “may [] infer that a sentencing court gave
specific attention to a defendant’s argument for a downward departure if the sentencing
court engage[d] counsel in a discussion about that argument.” Blue, 877 F.3d at 521
(citing Gall, 552 U.S. at 54). But the record contains no contextual clues, such as a
conversation with counsel, to suggest that the district court considered Gibbs’s
arguments. During Gibbs’s presentation, the district court asked no questions and made
no comments beyond those required to keep the proceedings moving. Lynn, 592 F.3d at
584. Nor did the court give any indication that it found Gibbs’s arguments persuasive or
unpersuasive. Id.
With nowhere else to turn, the majority reads heavily into the court’s two-word
response—“all right”—and subsequent pause after being asked by Gibbs’s counsel to
reconsider the 24-month range. The majority takes these two words and the pause to
adequately address not one, but three separate arguments. See Ante at 12. For the
majority, the district court’s “brief pause,” noted on the hearing transcript, signifies that
the court “[gave] the argument[s] thought,” as well as “considered and rejected” Gibbs’s
arguments. Id. This conclusion seems tenuous at best—especially because we have held
that “an appellate court may not guess at the district court’s rationale, searching the
record for statements by the Government or defense counsel or for any other clues that
might explain a sentence.” United States v. Carter, 564 F.3d 325, 329–30 (4th Cir.
22
2009). Moreover, the terse exchange upon which the majority opinion relies occurred
after the district court had already handed down Gibbs’s sentence. This renders the
court’s pause even less satisfying, as the parties’ arguments are meant to help the court
arrive at an appropriate and individualized sentence in the first place. See Lynn, 592 F.3d
at 584–85 (“Indeed, the only time the district court even acknowledged the defendant’s
arguments was after it had imposed sentence; even then, it did so obliquely.”).
The district court neither directly nor indirectly addressed Gibbs’s nonfrivolous
arguments for a downward variance. This amounts to a significant procedural error,
which renders Gibbs’s sentence procedurally unreasonable.
B.
The court that sentenced Gibbs also failed to adequately explain the sentence it
chose. A procedurally sound sentence must provide an adequate explanation for the
sentence imposed. Gall, 552 U.S. at 50–51; see also 18 U.S.C. 3553(c) (“The court, at
the time of sentencing, shall state in open court the reasons for its imposition of the
particular sentence[.]”). Sentences that fall within the suggested Guidelines range are no
exception. Montes-Pineda, 445 F.3d at 380. A district court’s explanation “need not be
lengthy, but the court must offer some ‘individualized assessment’ justifying the sentence
imposed.” Lynn, 592 F.3d at 584 (citing Gall, 552 U.S. at 50; Carter, 564 F.3d at 330).
Adequate explanation not only ensures individualized sentences, but also “allow[s] for
meaningful appellate review” and “helps [the sentencing process] evolve.” Gall, 552
U.S. at 50; Rita, 551 U.S. at 357.
23
An adequate explanation is one that “consider[s] the factors outlined in 18 U.S.C.
§ 3553(a) and ‘articulate[s] the reasons for selecting the particular sentence.’” United
States v. Helton, 782 F.3d 148, 152 (4th Cir. 2015) (quoting United States v. Green, 436
F.3d 449, 456 (4th Cir. 2006)). Although a district court “need not be as detailed or
specific when imposing a revocation sentence as it must be when imposing a post-
conviction sentence,” Thompson, 595 F.3d at 547, it must still “provide a statement of
reasons for the sentence imposed,” Moulden, 479 F.3d at 657.
Contrary to common sense, the majority opinion suggests that the sentencing
court’s mere recitation of Gibbs’s criminal history is enough to satisfy this standard. See
Ante at 13. But it is hard to imagine how such a description, absent any express
reasoning, can be fairly called an “explanation.” See Explanation, Black’s Law
Dictionary (10th ed. 2014) (defining “explanation” as the “activity or process of
expounding, interpreting, or making something intelligible;” especially “the process of
demonstrating by reasoning . . . the causal or logical antecedents or conditions of some
event or thing to be accounted for”). A court’s simple restatement of the matter at
hand—i.e., recounting Gibbs’s violations of his supervised release—is not the same as an
explanation for the sentence imposed.
The notion that Gibbs’s criminal history constitutes an adequate explanation seems
even more unlikely in the context of the revocation of supervised release. While the
Guidelines “base original sentences primarily on the severity of the defendant’s criminal
conduct and criminal history,” Crudup, 461 F.3d at 437, the Guidelines explain that
revocation sentences “should sanction primarily the defendant’s breach of trust, while
24
taking into account, to a limited degree, the seriousness of the underlying violation and
the criminal history of the violator.” U.S. Sentencing Guidelines Manual, ch. 7, pt. A,
introductory cmt. 3(b) (U.S. Sentencing Comm’n 2016). Thus, even if a recitation of
Gibbs’s criminal past somehow comprises an explanation, it at most explains a tangential,
and not a primary, issue. Moulden, 479 F.3d at 657.
Regardless of the relevance of Gibbs’s criminal history, § 3553(c) mandates that
the sentencing court “state in open court the reasons for its imposition of the particular
sentence.” 18 U.S.C. § 3553(c). Adequate explanations should demonstrate that the
sentencing judge considered the § 3553(a) factors. Helton, 782 F.3d at 152. In
Thompson, we vacated the appellant’s revocation sentence because of the district court’s
failure to adequately explain its reasoning. 595 F.3d at 547. Nonetheless, even the
district court in Thompson managed to note that it “could not find that Thompson ‘was
not a danger to the community.’” 595 F.3d at 549 (Niemeyer, J., dissenting). Similarly,
in Slappy, we held that the sentencing court failed to adequately explain the appellant’s
sentence. 872 F.3d at 204. However, even the inadequate explanation offered by the
district court there provided more of an explanation than Gibbs received. Echoing the
language of § 3553(a), the district court in Slappy stated, “This sentence is imposed to
afford adequate deterrence to criminal conduct.” Id. at 206. But with Gibbs, the district
court did not offer even an inadequate explanation for why it chose this particular
sentence, let alone the statutory maximum. See, e.g., Slappy, 872 F.3d at 209.
25
By handing down Gibbs’s sentence with no rationale for the sentence imposed, the
district court did not meet its obligation to adequately explain its chosen sentence. Such a
significant procedural error cannot survive our reasonableness review.
* * *
In sum, our precedent overwhelmingly holds that a sentencing court must both
respond to the nonfrivolous mitigating arguments of the defendant—be it in the form of a
direct response or a demonstrated engagement with counsel—as well as adequately
explain its decision with a statement of reasons for choosing the particular sentence
imposed. The record from Gibbs’s revocation hearing reveals the district court’s failure
to comport with either procedural requirement. By affirming it, the majority opinion flies
in the face of the plain and long-established precedent of both the Fourth Circuit and the
Supreme Court.
III.
The majority purports to apply our binding precedent, but in reality it undermines
it. In its opinion, the majority claims that revocation sentences falling within the advised
Guidelines range are “presumed reasonable.” Ante at 9 (citing Webb, 738 F.3d at 642).
This misconstrues the law. While within-Guidelines sentences may be presumed to be
substantively reasonable, such a presumption does not apply to the procedural prong of
the reasonableness analysis. Blue, 877 F.3d at 519–20; see Gall, 522 U.S. at 51
(permitting appellate courts to apply an optional presumption of reasonableness in their
substantive analysis of within-Guidelines sentences). As we have explained before,
26
applying such a presumption would “effectively eliminate the requirement that
sentencing courts adequately explain all sentences, even those within the Guidelines, and
would be inconsistent with this Court’s precedent.” Blue, 877 F.3d at 520.
Moreover, a presumption of reasonableness makes little sense in the context of
procedural review. The only reason we may presume that a sentence is substantively
reasonable is because there are procedural safeguards in place at the time of sentencing,
which assure us that the district court made a carefully reasoned and appropriately
individualized decision. Robust procedural requirements—such as those instructing the
sentencing court to fully address the parties’ arguments and adequately explain its chosen
sentence—are precisely what allow for a presumption of substantive reasonableness. To
presume that a within-Guidelines sentence is procedurally sound is to turn the entire
reasonableness analysis on its head.
Even more troubling is that, in searching for a rationale from the district court, the
majority transposes its own reasoning where the district court’s should be. Ante at 11–13.
Analysis of a sentence’s reasonableness proceeds under an abuse of discretion standard.
Gall, 552 U.S. at 56. Thus, our task, contrary to what the majority opinion implies, is not
to describe what our reasons would have been had we been the ones to sentence Gibbs to
two years in prison. Rather, our responsibility is to determine whether the district court
adequately explained its reasons for sentencing Gibbs, and, by extension, whether Gibbs
was sentenced in a fair manner. The abuse of discretion standard underscores the critical
need for a requirement of clear explanation from the district court. Such a requirement
exists precisely so that we do not risk substituting our own reasoning for that of the
27
sentencing court, which is closer to the facts of the case and thus better able to fashion an
appropriate sentence.
In light of the law of this Court, the majority opinion cannot justify the district
court’s failure to offer Gibbs an adequate explanation. While insisting that the record
“amply” demonstrates the district court’s consideration, ante at 3, the majority sets the
bar absurdly low by asserting that two words and a brief pause are enough to provide a
satisfactory acknowledgement of a defendant’s arguments for a downward variance.
Such a conclusion renders meaningless the requirement to explain a sentencing
decision—a sentencing decision that, lest we forget, amounts to no less than the
deprivation of the defendant’s liberty.
IV.
At Gibbs’s sentencing hearing, the district court gave no indication that it had
considered Gibbs’s time already served, nor his family’s hardship, nor his completed
work training, nor his cooperation with the Government’s investigations in the
Wilmington area—the bases of each of Gibbs’s nonfrivolous mitigating arguments. The
court also offered no explanation for imposing the particular sentence it chose.
Nonetheless, the majority believes the district court fulfilled its congressionally mandated
duty to adequately explain its sentence. As such, the majority predicates its decision on
little more than its independent belief that Gibbs received the punishment he deserved.
Such a position is not only an affront to over a decade of clearly established precedent
28
with regard to sentencing procedure, but also a transgression of our role as a reviewing
court.
I respectfully dissent.
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