UNITED STATES of America, Plaintiff—Appellee, v. George CARTER, Defendant—Appellant.
No. 11-4561.
United States Court of Appeals, Fourth Circuit.
Submitted: Feb. 28, 2012. Decided: March 2, 2012.
468 Fed. Appx. 351
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Unpublished opinions are not binding рrecedent in this circuit.
PER CURIAM:
George Carter appeals an order revoking supervised release and the resulting twenty-four-month sentence imposed by the district court. On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that, in his opinion, there are no meritorious issues for appeal, but questioning whether: (1) Carter can challenge the reasonableness of his original sentence as part of this appeal; (2) Carter can challenge the twenty-four-month supervised release sentence on the ground that when it is coupled with his original sentence of fifty-seven months in prison it exceeds thе sixty-month statutory maximum for his
First, we conclude that Carter cannot attack the reasonableness of his original sentence in this appeal. Under the law of the case doctrine, once an appellаte court “decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” United States v. Aramony, 166 F.3d 655, 661 (4th Cir.1999) (internal quotаtion marks omitted). Because we expressly found on direct appeal that Carter‘s sentence was reasonable and that the district court сomplied with Rule 11 requirements, Carter‘s attempt to relitigate his original sentence is not reviewable in this appeal. United States v. Carter, 237 Fed.Appx. 888 (4th Cir.2007); see also United States v. Warren, 335 F.3d 76, 78 (2d Cir.2003) (collecting cases holding thаt validity of underlying conviction may not be attacked in supervised release revocation proceeding).
Next, we conclude that Carter‘s revocation sentence cannot be attacked on the ground that when it is coupled with his original fifty-seven-month sentence the appropriаte period of incarceration he must serve exceeds the sixty-month maximum authorized for his original count of conviction,
We find unreviewable Carter‘s claim that he was denied access to conflict-free counsel during the original criminal proceedings. As previously noted, Cartеr cannot challenge the validity of his underlying conviction in this proceeding. Warren, 335 F.3d at 78-79.
We also conclude that the claims raised in Carter‘s pro se supplemental briefs are without merit.
We next review Carter‘s rеvocation sentence under a plainly unreasonable standard of review. United States v. Crudup, 461 F.3d 433, 437 (4th Cir.2006). In determining whether a sentence is plainly unreasonable, we must first consider whether the sentence imposed is unreasonable, following “the procedural and substantive considerations that we employ in our review оf original sentences.” Id. Only if we find the sentence procedurally or substantively unreasonable must we decide whether it is “plainly” so. United States v. Moulden, 478 F.3d 652, 657 (4th Cir.2007). A sentence is plainly unreasonable if it runs afoul of clearly settled law. United States v. Thompson, 595 F.3d 544, 548 (4th Cir.2010).
Under the procedural considerations applicable to revocation sentences, it is clearly settled that a district court must sufficiently explain the reasons for the chosen sentence so that this court may effectively review it. Moulden, 478 F.3d at 657. “This requirement applies regardless of whether the district court imposes an above, below, or within-Guidelines sentence.” Thompson, 595 F.3d at 547 (internal quotation marks and alteration omitted).
To preserve a claim of рrocedural sentencing error for plainly unreasonable appellate review, “a defendant need only ask for a sentence outsidе the range calculated by the court prior to sentencing.” Id. at 546. If a district court commits a procedural sentencing error that is plainly unreasonable, i.e., plainly in contravention of circuit authority, we will grant relief unless we can conclude that the error was harmless. Id. at 548. The party defending the ruling below bears the burden of showing that the error was harmless. United States v. Lynn, 592 F.3d 572, 585 (4th Cir.2010).
Having conducted an Anders review of Carter‘s sentence, we concluded that the district court did not adequately explain its reasons for imposing the twenty-four-month revocation sentence, and that Carter preserved this claim for appellate review. We requested supplemental briefing from the parties on whether the district court‘s failure to explain its reasons for the twenty-four-month revocation sentencе was harmless error. Carter‘s counsel filed a supplemental brief, arguing that the error was not harmless. The Government, conceding the error and making nо effort to show that the error is harmless, filed a motion to remand for resentencing.
We cannot assume that the district court‘s sentence would not be affected by its explicit consideration of Carter‘s arguments in his and counsel‘s presence and a requirement that it explain the rationale underрinning its sentencing determination in open court. See Lynn, 592 F.3d at 585. Accordingly, while we affirm the district court‘s revocation of Carter‘s supervised release, we vacate the sentence and remand for resentencing.*
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 IN PART, VACATED IN PART, AND REMANDED.