US v. Brian Redwine, No. 12-4440 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4440 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BRIAN REDWINE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:03-cr-00394-JRS-28) Submitted: November 8, 2012 Decided: November 15, 2012 Before SHEDD, DUNCAN, and KEENAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Roderick C. Young, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In 2004, Brian Redwine pleaded guilty to conspiracy to possess with intent to distribute and distribute cocaine, in violation of 21 U.S.C. § 846 (2006), and the district court sentenced Redwine to 151 months of three years of supervised release. imprisonment followed by Based on the Government s motion for a sentence reduction for substantial assistance, and Redwine s 18 U.S.C. § 3582(c)(2) (2006) motion, the court subsequently reduced Redwine s sentence to sixty-five months of imprisonment. In 2009, Redwine pleaded guilty to violating the terms of his supervised release and the district court sentenced him to forty-eight months of imprisonment followed by twelve months of supervised release. In May 2012, Redwine again pleaded guilty to violating the terms of his supervised release and the district court sentenced Redwine to twelve months of imprisonment. Redwine now appeals, arguing that the second revocation sentence is plainly unreasonable. This court reviews a sentence imposed as a result of a supervised release violation to determine whether the sentence United States v. Crudup, 461 F.3d 433, is plainly unreasonable. 437 (4th Cir. 2006). The first step in this analysis is a determination of whether the sentence is unreasonable. 438. This court, in determining reasonableness, Id. at follows generally the procedural and substantive considerations employed 2 in reviewing original sentences. If a sentence imposed Id. after a revocation is not unreasonable, we will not proceed to the second prong of the analysis whether the sentence is plainly unreasonable. In Crudup, 461 F.3d at 438-39. sentencing a defendant upon a finding of a supervised release violation, the district court must provide a statement of reasons for the sentence imposed; this statement, however, need not be as detailed or specific as that required See United States v. Thompson, 595 for an original sentence. F.3d 544, 547 (4th Cir. 2010) (citation omitted). We review the adequacy of the district court s explanation for the sentence See United States v. Lynn, 592 F.3d for abuse of discretion. 572, 578-79 (4th Cir. 2010). If the district court abused its discretion, we will reverse unless we conclude that the error was harmless. Id. at 576. The government bears the burden of demonstrating that any error committed by the district court was harmless. Id. at 585. We have thoroughly reviewed the record and conclude that the district court erred in sentencing Redwine. failed to statutory provide maximum any term explanation for the and to acknowledge failed non-frivolous arguments for leniency. The court sentence of the Redwine s We further conclude that the Government has failed to demonstrate that this error was harmless as the district court could have reasonably imposed a 3 lower sentence had it explicitly considered Redwine s sentencing arguments. See Thompson, 595 F.3d at 548. Therefore, we find that the sentence is procedurally plainly unreasonable. Accordingly, we vacate the district court s judgment and remand for resentencing. * 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 in the decisional process. VACATED AND REMANDED * We emphasize that, by the disposition, we indicate no view as to the substantive reasonableness of the twelve month sentence imposed by the district court. Accordingly, on remand the district court is free to impose the same sentence or a different sentence, as it deems appropriate. 4
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