442 F. App'x 845
4th Cir.
2011

UNITED STATES OF AMERICA v. TYRONE TOSSIE

No. 11-6330

United States Court of Appeals, Fourth Circuit

Decided: Aug. 12, 2011

439 Fed. Appx. 254

Submitted: Aug. 3, 2011

P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Before MOTZ, KING, and DAVIS, Circuit Judges.

Vacated and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Tyrone Tossie appeals the district court‘s order revoking his supervised release and imposing a twelve-month term of imprisonment. He argues that the district court plainly erred in failing to explain its sentence. For the reasons that follow, we vacate the sentence and remand for further proceedings.

This court reviews a sentence imposed upon revocation of a defendant‘s supervised release to determine whether the sentence is “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In determining whether a revocation sentence is “plainly unreasonable,” this Court must first determine whether the sentence is procedurally or substantively unreasonable. Id. at 438. Although a sentencing court must consider the Chapter Seven policy statements and the relevant 18 U.S.C. § 3553(a) (2006) factors in fashioning its sentence, the sentencing court retains broad discretion to revoke a defendant‘s supervised release and impose a term of imprisonment up to the statutory maximum. Id. at 439. Because Tossie did not request a lesser sentence, he must show that any error was plain and affected his substantial rights. United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010).

Although the discretion afforded district courts is such that this court “may be hard-pressed to find any explanation for within-range, revocation sentences insufficient ... a district court may not simply impose sentence without giving any indication of its reasons for doing so.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Here, the district court failed to offer any explanation at all for imposing a twelve-month sentence. We have held that this constitutes plain error. Thompson, 595 F.3d at 548. Additionally, the record does not include any calculation of the applicable advisory Guidelines range, which prevents our review of whether the error affected Tossie‘s substantial rights. Accordingly, we vacate Tossie‘s sentence and remand for resentencing in accordance with this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED.

Aaron FRENCH, Plaintiff-Appellant, v. WARDEN; John Rowley; J. Loibel; Dan Watson, Lieutenant; Warner, Lieutenant; Whetstone, Officer; Spiker, Officer; Ryan, Officer, Defendants-Appellees.

No. 10-7756

United States Court of Appeals, Fourth Circuit

Decided: Aug. 12, 2011

Submitted: Aug. 3, 2011

Aaron French, Appellant Pro Se. Nichole Cherie Gatewood, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellees.

Before WILKINSON, KING, and WYNN, Circuit Judges.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Aaron Little French, a Maryland state prisoner, brought a civil complaint under 42 U.S.C. § 1983 (2006) against prison staff. The district court dismissed the action, finding that French failed to exhaust his administrative remedies. French appeals the district court‘s orders granting summary judgment and denying his motion for reconsideration. We have reviewed the record and find no reversible error.

A prisoner must properly exhaust available administrative remedies prior to filing a § 1983 action concerning prison conditions. 42 U.S.C. § 1997e(a) (2006); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (explaining that exhaustion requires using every step available and complying with relevant procedural requirements). French contended in the district court that he could not complete the administrative review process because prison staff did not respond to his grievances. Maryland Division of Correction Directive 185-002 (“DCD 185-002“) provides, however, that a prisoner should treat a failure to respond within thirty days as a denial and file an appeal to the next level. Assuming, as French contended, that he received no response to his grievances, under DCD 185-002, and based on the dates of his initial grievance and the filing of the complaint in this action, he could not have completed the grievance process before he filed suit in the district court. Thus, the district court properly concluded that French failed to exhaust his administrative remedies.

Accordingly, we affirm the district court‘s order granting summary judgment but modify the dismissal to be without prejudice to French‘s right to refile once exhaustion is complete. We also conclude that the district court did not abuse its discretion by denying French‘s motion for reconsideration. See Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 407 (4th Cir. 2010) (providing standard for review of Fed.R.Civ.P. 59(e) motion). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED.