US v. Jhirmick Cabbagestalk, No. 13-4668 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4668 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JHIRMICK CABBAGESTALK, a/k/a Thomas Blanchard, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:12-cr-00397-F-1) Submitted: March 14, 2014 Decided: May 6, 2014 Before MOTZ, GREGORY, and KEENAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jhirmick Cabbagestalk appeals the district court s judgment revoking his supervised release and imposing a twenty-four-month prison term. On appeal, Cabbagestalk challenges the procedural and substantive reasonableness of his sentence. For the reasons that follow, we vacate the district court s judgment and remand for resentencing. In examining supervised a release, sentence this Court imposed takes upon a revocation more of deferential appellate posture concerning issues of fact and the exercise of discretion than sentences. reasonableness United States v. review Moulden, for 478 [G]uidelines F.3d (4th Cir. 2007) (internal quotation marks omitted). 652, 656 We will affirm a revocation sentence if it falls within the statutory range and is not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437-40 (4th Cir. 2006) (internal quotation marks omitted). We must first determine whether the sentence is unreasonable, using the same general analysis employed in our review of original sentences. Id. at 438. A revocation sentence is procedurally reasonable if the district court has considered the policy statements contained in Chapter Seven of the U.S. Sentencing Guidelines Manual and the applicable 18 U.S.C. § 3553(a) factors, see Crudup, 461 F.3d at 440, and provides an adequate explanation for the sentence it imposes. 2 United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). If the sentence is procedurally or substantively unreasonable, we will consider whether it is plainly so. Crudup, 461 F.3d at 439. In explaining required to a sentence, robotically subsection. United the tick States district through v. court is not § 3553(a) s Powell, 650 F.3d every 388, (4th Cir. 2011) (internal quotation marks omitted). 395 However, the court must conduct an individualized assessment justifying the sentence imposed and rejection of arguments for a higher or lower sentence 592 F.3d 572, omitted). based 584 a district Cir. the reasons judge § 3553. (4th Where nonfrivolous on United 2010) should or imposing address Lynn, marks prosecutor a the v. quotation (internal defendant for States presents different sentence, party s explain why he has rejected those arguments. arguments and United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks omitted). In this case, counsel for both the Government and Cabbagestalk requested that the district court impose a sentence within the policy imprisonment. The statement range of five to district court responded eleven that it months thought maybe more than the Guideline range [wa]s appropriate because Cabbagestalk s violation of his 3 supervised release was an intentional absconsion probation officer. and Cabbagestalk tried to avoid the Counsel for the Government agreed with the court s description, and the court stated that Cabbagestalk s behavior was indicative of an individual who just doesn t want to work with the system. The district court then imposed the statutory maximum sentence of twenty-four months imprisonment. 18 U.S.C. §§ 3559(a)(3), 3583(e)(3). On appeal, Cabbagestalk contends that his sentence is unreasonable because the district court failed to address his argument that a sentence within the policy statement range of five to eleven months imprisonment was warranted in light of his mental health circumstances, and because the court evinced little individualized assessment of him. Cabbagestalk also contends that his sentence is unreasonable in light of his need for mental health treatment and because the district court improperly cited to the need for the sentence to promote respect for the law. While the court s statements during the revocation hearing did provide some context for its decisionmaking, we conclude that they were inadequate to demonstrate the court s meaningful consideration Cabbagestalk of in statement range. and remand for the support nonfrivolous of a arguments sentence within raised the by policy Accordingly, we vacate Cabbagestalk s sentence resentencing. On 4 remand, the district court should consider Cabbagestalk s nonfrivolous arguments regarding his mental health and family circumstances. * oral argument adequately because presented in the the facts and materials We dispense with legal contentions are before this and Court argument would not aid the decisional process. VACATED AND REMANDED * Because we agree that Cabbagestalk s sentence is plainly procedurally unreasonable in light of the district court s failure to make an individualized assessment in this case, we need not address his arguments that the sentence was otherwise procedurally unreasonable because the court improperly cited the need for the sentence to promote respect for the law or substantively unreasonable in light of his need for mental health treatment. By our disposition, we indicate no view as to the appropriate sentence to be imposed on remand. 5
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