United States v. Sherwin Tann, Jr. ( 2023 )

USCA4 Appeal: 23-4010 Doc: 26 Filed: 06/09/2023 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-4010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERWIN LEE TANN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Elizabeth City. Louise W. Flanagan, District Judge. (2:19-cr-00025-FL-1)
Submitted: May 4, 2023 Decided: June 9, 2023
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and KEENAN, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Andrew DeSimone, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A.
Bragdon, Assistant United States Attorney, John L. Gibbons, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Sherwin Lee Tann, Jr., appeals the 24-month sentence imposed by the district court
after it revoked his supervised release. We agree with Tann’s contention that the district
court failed to adequately address his nonfrivolous arguments for a lesser sentence.
Accordingly, we vacate his sentence and remand.
“A district court has broad discretion when imposing a sentence upon revocation of
supervised release.” United States v. Patterson, 957 F.3d 426, 436 (4th Cir. 2020). We
“will affirm a revocation sentence if it is within the statutory maximum and is not plainly
unreasonable.” Id. Before deciding “whether a revocation sentence is plainly
unreasonable, [we] must first determine whether the sentence is procedurally or
substantively unreasonable,” id., evaluating “the same procedural and substantive
considerations that guide our review of original sentences” but taking “a more deferential
appellate posture than we do when reviewing original sentences,” United States v. Padgett,
788 F.3d 370, 373 (4th Cir. 2015) (brackets and internal quotation marks omitted). If a
revocation sentence is both procedurally and substantively reasonable, we will not proceed
to consider “whether the sentence is plainly unreasonable—that is, whether the
unreasonableness is clear or obvious.” Patterson, 957 F.3d at 437 (internal quotation
marks omitted).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Chapter Seven policy statement range
and the applicable [18 U.S.C.] § 3553(a) sentencing factors.” Id. at 436; see 18 U.S.C.
§ 3583(e) (listing applicable factors). “[A]lthough the court need not be as detailed or
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specific when imposing a revocation sentence as it must be when imposing a post-
conviction sentence, it still must provide a statement of reasons for the sentence imposed.”
United States v. Slappy, 872 F.3d 202, 208 (4th Cir. 2017) (alteration and internal quotation
marks omitted). If the court imposes a sentence within the policy statement range, “less
explanation” is typically required. Patterson, 957 F.3d at 439 (internal quotation marks
omitted).
“[A] district court, when imposing a revocation sentence, must address the parties’
nonfrivolous arguments in favor of a particular sentence, and if the court rejects those
arguments, it must explain why in a detailed-enough manner that [we] can meaningfully
consider the procedural reasonableness of the revocation sentence imposed.” Slappy, 872
F.3d at 208. “[W]here a court entirely fails to mention a party’s nonfrivolous arguments
in favor of a particular sentence, or where the court fails to provide at least some reason
why those arguments are unpersuasive, even the relaxed requirements for revocation
sentences are not satisfied.” Id. at 209.
The district court failed to explicitly address Tann’s two main arguments in
mitigation—his employment history while on supervision and his desire to improve his
relationship with his family. While we may be able to infer that the district court addressed
this latter argument by recounting Tann’s offense conduct—assaulting the mother of his
children—we cannot do so regarding the employment argument, as we “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.
Perez-Paz, 3 F.4th 120, 128 (4th Cir. 2021). The district court’s failure to address these
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arguments is compounded by the court’s decision to vary upward and impose the statutory
maximum sentence. See Slappy, 872 F.3d at 209. And under Slappy, we conclude that the
sentence is plainly unreasonable. See id. at 210. We also reject the Government’s
argument that the error here was harmless because “nothing in the record explicitly
indicates that [the district court] would have imposed the same sentence regardless of
whether it considered any specific mitigation factors.” Patterson, 957 F.3d at 440.
Accordingly, we vacate Tann’s sentence and remand for further proceedings. * We
deny Tann’s motion to expedite as moot. 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
*
Because we conclude that the sentence is procedurally unreasonable given the
court’s failure to address Tann’s nonfrivolous arguments, we decline to address Tann’s
additional arguments that the court committed further procedural error by referring to his
arrest record and dismissed charges and in considering the amount of credit Tann would
receive for his pretrial detention.
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