United States v. Vincent Vanover ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT VANOVER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:19-cr-00030-GMG-RWT-1)
Submitted: October 7, 2020 Decided: October 26, 2020
Before MOTZ and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell,
United States Attorney, Wheeling, West Virginia, Jeffrey A. Finucane, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Vanover appeals the 18-month sentence of imprisonment and two-year
term of supervised release imposed upon the revocation of his probation. On appeal,
Vanover’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal but questioning whether the two-year
term of supervised release is unreasonable. Vanover was notified of his right to file a pro
se supplemental brief but has not done so.
After a review of the record pursuant to Anders, we directed the parties to file merits
briefs addressing whether, in sentencing Vanover within the Sentencing Guidelines range
applicable to his underlying conviction, the district court adequately considered Vanover’s
advisory policy statement range. Having reviewed the parties’ submissions, we vacate and
remand for resentencing.
Upon revoking a defendant’s probation, a district court has broad discretion to
impose a sentence up to the statutory maximum for the original violation. United States v.
Schaefer, 120 F.3d 505, 507 (4th Cir. 1997). The standard for reviewing a sentence
imposed on revocation of probation is the same as the standard for reviewing a sentence
imposed on revocation of supervised release. United States v. Moulden, 478 F.3d 652,
655-56 (4th Cir. 2007). Thus, we will affirm the revocation sentence if it is within the
statutory maximum and is not “plainly unreasonable.” Id. at 656.
To determine whether a revocation sentence is plainly unreasonable, we first review
the sentence for reasonableness, applying the same general considerations employed in
review of original sentences. United Sates v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006).
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“A revocation sentence is procedurally reasonable if the district court adequately explains
the chosen sentence after considering the Sentencing Guidelines’ nonbinding Chapter
Seven policy statements and the applicable 18 U.S.C. § 3553(a) factors.” United States v.
Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnotes omitted); see Moulden, 478 F.3d at
656 (requiring “consideration of all of the § 3553(a) factors” in imposing probation
revocation sentence). “[A] revocation sentence is substantively reasonable if the court
sufficiently states a proper basis for its conclusion that the defendant should receive the
sentence imposed.” Slappy, 872 F.3d at 207 (alteration and internal quotation marks
omitted).
Where, as here, a defendant fails to preserve a claim of procedural sentencing error,
our review is for plain error. United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010).
To satisfy this standard, Vanover must demonstrate that: (1) the district court erred; (2) the
error was plain; and (3) the error affected his substantial rights. Henderson v. United States,
568 U.S. 266, 272 (2013). Even if those requirements are met, we will “exercise our
discretion to correct the error only if it seriously affect[ed] 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).
It is well settled in this Circuit that a court imposing sentence upon revocation of
probation must consider “the policy statements contained in Chapter [Seven], including the
policy statement range, as ‘helpful assistance,’” in selecting the sentence. Moulden, 478
F.3d at 656; see 18 U.S.C. § 3553(a)(4)(B). For these purposes, the Guidelines Manual
treats revocation of supervised release and probation equivalently, requiring consideration
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of the policy statement range established under Section 7B1.4. U.S. Sentencing Guidelines
Manual § 7B1.3(b), p.s. (2018); see Moulden, 478 F.3d at 655-56; see also Schaefer, 120
F.3d at 506-08 (noting that, after 1994 amendment to 18 U.S.C. § 3565(a)(2), district court
is not constrained to sentence within original Guidelines range). A defendant, like
Vanover, with Grade C violations and criminal history category of III is subject to an
advisory policy statement range of 5 to 11 months’ imprisonment. USSG § 7B1.4(a), p.s.
(sentencing table).
In sentencing Vanover, the district court neither calculated nor expressly considered
the applicable policy statement range. Instead, its statements during the revocation hearing
indicate that it believed it should be guided by the Guidelines range applied at Vanover’s
original sentencing. While the probation officer prepared a worksheet describing the policy
statement range, and defense counsel referenced that range in her sentencing argument,
both likewise indicated that the original Guidelines range applied. On this record, we
decline the Government’s invitation to infer the court’s implicit consideration of the policy
statement range. See United States v. Carter, 564 F.3d 325, 329-30 (4th Cir. 2009)
(precluding appellate court from “guess[ing] at the district court’s rationale” or engaging
in “any presumption that, when imposing a sentence, the district court has silently adopted
arguments presented by a party”); see also United States v. Waller, 548 F. App’x 917, 919
(4th Cir. 2013) (No. 13-4118) (argued but unpublished) (“[T]he mere fact that a Probation
Officer prepared a worksheet does not establish . . . that the court actually considered the
policy statement range.”). Thus, we conclude that the district court committed error in
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failing to adequately consider the policy statement range and that the error is plain. See
United States v. Thompson, 595 F.3d 544, 547-48 (4th Cir. 2010) (describing “plain” error).
Further, we readily conclude that the error affected Vanover’s substantial rights.
Given that the court sentenced Vanover at the bottom of the Guidelines range from his
original sentencing, we discern a reasonable probability that the court would have imposed
a lower sentence had it properly considered the applicable 5-to-11-month policy statement
range. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). Further, we
conclude that the error seriously affected the fairness of the proceeding, warranting
correction. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1903 (2018).
In the Anders brief, Vanover’s counsel also questions the reasonableness of
Vanover’s supervised release term. Unlike Vanover’s term of imprisonment, our review
reveals no procedural error in the supervised release portion of Vanover’s sentence. The
two-year term was within the range authorized for person who committed a Class C felony,
see USSG §§ 5D1.2(a)(2), 7B1.3(g)(1), p.s., and the court provided an adequate
explanation for the length of the term it imposed. However, because we find Vanover’s
sentence otherwise procedurally unreasonable, we have no occasion to address the
substantive reasonableness of his supervised release term. See United States v. Provance,
944 F.3d 213, 218 (4th Cir. 2019).
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Accordingly, we vacate the district court’s judgment and remand for resentencing. *
In so doing, we express no opinion as to the appropriate length of Vanover’s sentence,
leaving that determination in the first instance to the district court’s sound discretion. 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
*
We note that Vanover’s impending release from prison neither moots his
sentencing challenge nor eliminates the need for resentencing. See United States v. Ketter,
908 F.3d 61, 65-66 (4th Cir. 2018).
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