US v. Robbie Converse, No. 14-4163 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4163 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBBIE JOSHUA CONVERSE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:08-cr-00116-JRS-1) Submitted: August 26, 2014 Decided: September 9, 2014 Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Robert J. Wagner, Assistant Federal Public Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Michael R. Gill, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robbie Joshua Converse appeals the twenty-seven month sentence imposed release. plainly failed On upon appeal, procedurally to provide sentence. * revocation Converse his argues unreasonable an of adequate term that because of his the explanation supervised sentence district for its is court chosen The Government concedes that the district court s explanation was inadequate and that therefore the court erred, but argues considered that the the error Government s was harmless. contentions and We have are fully unable to conclude that the absence of any explanation whatsoever for the court s chosen sentence was harmless in this case. Accordingly, we vacate the judgment and remand for resentencing. Procedural sentencing error, including a failure to adequately explain the chosen sentence, is subject to review for harmless error. Lynn, 592 F.3d at 576. Under that standard, the government may avoid reversal only if it demonstrates that the error did not have a substantial and injurious effect or influence on the result, such that we can say with fair assurance that the district court s explicit consideration of * Converse preserved his challenge to the adequacy of district court s explanation [b]y drawing arguments from U.S.C.] ยง 3553 [(2012)] for a sentence different than the ultimately imposed by the district court. United States Lynn, 592 F.3d 572, 578 (4th Cir. 2010). 2 the [18 one v. the defendant s arguments would not have affected the sentence imposed. United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (internal quotation marks and alterations omitted); see United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006) (noting that error). government Remand explanation is prevents bears burden appropriate us from to when establish the determin[ing] absence why the harmless of an district court deemed the sentence it imposed appropriate or produce[s] a record insufficient to permit even . . . routine review for substantive reasonableness. Lynn, 592 F.3d at 582 (internal quotation marks omitted). We find the Government s arguments unavailing. First, we conclude that the district court s adoption of the parties requests for recommendations as to drug treatment and prison location did not satisfy the court s obligation to explain its chosen sentence. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (acknowledging that in some cases, a district court s reasons for imposing a within-range sentence may be clear from context, but concluding that those other statements must actually relate to the imposed sentence, not some distinct, penological or administrative question ). Nor does the fact that mean the court made those recommendations that considered the parties arguments for variant sentences. 3 it also Second, and contrary to the Government s suggestion, our precedents make clear that district courts are not exempted from the explanation requirement when they reject a motion for a variant sentence in favor policy statement range. of a sentence within the advisory Rather, the Government s and Converse s arguments for imposing a different sentence than that set forth in the advisory address the Guidelines part[ies ] established arguments rejected those arguments. and the court s explain why duty [it] to has United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Third, we reject the Government s contention that the lack of complexity of the parties arguments and the apparent egregiousness of Converse s violations render the court s failure to offer any explanation at all for its chosen sentence harmless. Both parties thought Converse s circumstances sufficiently unique to urge upon the district court imposition of a variant sentence from the advisory policy statement range. Moreover, while the district court could have explained on the record that it had considered and rejected Converse s claims of sincere remorse and specifically found that his violations were egregious, it did not do so, and we decline to speculate on the reasons appellate for the court court s may not sentence. guess rationale. ). 4 Id. at the at 329-30 district ( [A]n court s The district court s explanation of its revocation sentence need not have been extensive or exhaustive, but the omission of suffice. any statement Accordingly, explanation is sentencing and reasons being necessary to of to allow for mindful promote for its actions that a cannot sufficient the perception meaningful appellate of fair review, Gall v. United States, 552 U.S. 38, 50 (2007), we vacate the judgment and remand for resentencing. In so ordering, of course, we express no view as to the substantive reasonableness of the vacated sentence. 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 5

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