United States v. Thompson
595 F.3d 544
4th Cir.
2010
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Docket

*1 ” (intеrnal quotation .... marks sonable may have been Appleby’s omitted)). complicated and more layered a product of case, criminal typical than in the procedure that Appleby facts are the material

but II. charges life on the to to was sentenced I that the state cоurt’s Because believe being told guilty after pleaded he rejecting Appleby’s Due Process opinion to no more than could be sentenced that he contrary clearly to established claim was Clearly federal law years. established six law, respectfully dissent from the federal of be infоrmed requires that defendants majority’s grant Appleby’s peti- refusal to guilty to which their penalty the maximum corpus. a of habeas tion for writ them, and I am aware of no plea exposes from this rule recidivist excepting basis for like the one at issue

sentences plea therefore was Apрleby’s guilty case.3 made, voluntarily knowingly and not Due rejecting decision the state court’s to, in- contrary claims “was or Process of, application an unreasonable volved America, UNITED STATES of law, clearly established Federal as deter- Plaintiff-Appellee, by Supreme mined Court v. 2254(d)(1) (West States.” 28 U.S.C.A 2006); Taylor, v. 529 U.S. see Williams Barry THOMPSON, Barry Glen a/k/a 1495, 146 L.Ed.2d 389 120 S.Ct. Thompson, Defendant- G. (2000) a (explaining that state court’s deci- Appellant. contrary clearly established fed-

sion is No. 09-4247. “if the state court arrives at a eral law opposite to that reached Appeals, [the conclusion United States Court of Suprеme question on law” Fourth Circuit. Court] materially that are ‍‌‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​​‌‌​​‌‌​​​​‌​​​​‌​‌‌​‌​‌​​‍indis- “confronts facts 4, Argued: Dec. 2009. tinguishable Supreme from a relevant 23, Decided: Feb. 2010. at a precedent Court and arrives result Polk, opposite”); Robinson Cir.2006) (“A state court

adjudication application is an unreasonable the state cоurt ...

of federal law when apply principle precedent fails to in a where failure is unrea- context such Boles, 18(c) ("When Oyler v. it is determined ... that such vist statute in (1962), person twice before convicted pre-Boykin shall have been 7 L.Ed.2d 446 punishable was, however, in the United States of crime guilty-plea case. There no penitentiary, person confinement in a challenge Oyler, and the Court was not to be confined in the state shall be sentenced upon called to consider what kind of informa facility (emphasis for life.” add- correctional ed)). given pleading a defendant must be eligible guilty thаt makes him crime sentencing as a recidivist. rejected Supreme various consti- challenges Virginia’s to West recidi- tutional *2 Byrne, Jonathan D. Office of

ARGUED: Defender, Charleston, the Federal Public Virginia, Appellant. for Monica Ka- West Schwartz, minski Office Charleston, Attorney, Virgi- States West nia, Appellee. Mary for ON BRIEF: Lou Defender, Federal Newberger, Public Lex Coleman, A. Assistant Federal Public De- fender, Office of the Federal Public De- fender, Charleston, Virginia, Ap- West Miller, pellant. Charles T. United States Charleston, Attorney, Virginia, for West Appellee. NIEMEYER, MICHAEL,

Before GREGORY, Judges. Circuit by published and remanded Vacated opinion. Judge GREGORY wrote ‍‌‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​​‌‌​​‌‌​​​​‌​​​​‌​‌‌​‌​‌​​‍the majority opinion, Judge joined. Judge NIEMEYER MICHAEL a dissenting opinion. wrote OPINION

GREGORY, Judge: Circuit defendant, Thompson Barry Glen challenges

(“Thompson”), revoking release and eighteen-months impris- him to the district onment. claims risk, Thompson’s but that based on explain flight its chosen sen- court’s failure conduct, characteristics, history, unreasonable. We tence was sentence, and agree, Thompson’s say vacate could not that he was not a *3 sentencing hearing. remand for a new danger community. Thompson to the timely appealed.

I. II. January the United States On petitioned to revoke Probation Office reviews whether or not peti- The Thompson’s supervised release. imposed upon sentences revocation of su ar- alleged Thompson that had been tion pervised prescribed release are within the on, battery on two counts of rested statutory range “plainly and are not unrea of, policе officer and that he obstruction Crudup, sonable.” United States v. methamphetamine. The possessed had (4th Cir.2006). 433, govern The alleged Thompson also that had petition argues plain-error ap ment that review supervised- violated his previously twice plies Thompson object here because never by testing for nar- positive release terms adequacy ed below to the of the district cotics. sentencing explanation. As we ex hearing, Thompson At his revocation in our plained recent decision United government prove conceded that the (4th Lynn, 592 F.3d 572 Cir. States The charged violatiоns. 2010), only though, defendant need ask applicable, then determined that under the range for a sentence outside the calculated tables, non-binding policy Thompson faced by prior to in order to im- eighteen-months ‍‌‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​​‌‌​​‌‌​​​​‌​​​​‌​‌‌​‌​‌​​‍between twelve- and preserve his claim for review. objected prisonmеnt. party Neither Thompson Because did so here calculation. by requesting a six-month rather advisory range than a sentence within the op- an gave party

The court next each court, calculated the district we decline portunity argue appropriate to for the sen- apply plain-error proceed review and to tence. The emphasized plainly review whether un is battery Thompson had committed on two reasonable. police officers and had done so at 2:00 a.m., which it believed was relevant. III. Thompson argued

Counsel for that it was violation, children, his first he had minor When whether revoca gainfully employed and that he had been unreasonable, is we Thompson since his initial release. also must first determine whether it is unrea argued that police he had notified the Moulden, sonable at all. States v. squad loose ammunition in the car follow- Cir.2007); Crudup, 478 F.3d this, ing Thompsоn his arrest. Given Thompson 461 F.3d at 438. claims that his term, sought prison six-month followed proeedurally sentence is unreasonable be by supervised release. cause the district court failed to an adequate explanation for its chosen sen Thompson

The court then sentenced agree. tence. We eighteen-months imprisonment followed Only release. when defense a. requested Thompson counsel be al- self-report prison governed by lowed to did the court Revocation sentences are probably non-binding, policy note that not a statements in the Sen- they impose. revocation sentences Manual. U.S. Sentenc- tencing Guidelines 7(A)(1). Gall, See 128 S.Ct. 586. Though Manual ing Guidelines Chapter court must consider a district government argues that the district and other statuto- policy statements Seven sentencing Thomp- court’s statement after sen- to revocation ry provisions applicable clear for imposing son made its reasons ‍‌‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​​‌‌​​‌‌​​​​‌​​​​‌​‌‌​‌​‌​​‍tences, broad discretion to the court has Thompson requested that sentence. When particular Crudup, sentence. impose surrender, voluntary the district court Moulden, 438; 478 F.3d at F.3d at see “[bjased stated, on the character and the defendant, histоry conduct and *4 danger can’t find that there’s not a to the some limits. That discretion has community, although there’s a risk doubt proce significant A court commits district statement, flight.” of J.A. 43. This adequately it error where “fail[s] dural claims, shows the chosen sentence.” Gall v. explain adequately considered the relеvant sen- States, 38, 51, 552 U.S. 128 S.Ct. United tencing imposing factors when sentence. (2007). 586, 169 require 445 L.Ed.2d speculative decline to reach We such applies “[rjegardless ment of whether conclusion. above, below, imposes an district court cases, It is true that in some a district sentence.” within-Guidelines imposing court’s reasons for a within- Carter, 564 F.3d 330 States v. context, may sentence be from clear Cir.2009) (internal quotation marks omit States, Rita v. United ted). A court need not be as detailed or (2007), L.Ed.2d 203 a revocation sen specific imposing when including the statements to the de- court’s imposing post- it must be when tence as throughout fendant hear- sentence, pro it “must conviction but still at But ing. Lynn, 584-85. those other for the sen a statement of reasons vide actually statements must relate to the im- Moulden, at imposed.” 478 F.3d tence distinct, posed penolog- not some question. The ical or administrative dis- explain trict court’s statement here did nоt provided no such The district court rather, it imposed; the sentence it ex- Instead, simply it stated: statement here. plained allowing the court’s reasons for not judgment of the Court the defen “It’s the circum- voluntary surrender. Under custody to the of the dant be committed stances, impute we cannot district for а term of Federal Bureau of Prisons reasoning court’s for the latter the for- may months.” J.A. 42.* be hard- We proce- therefore mer. The sentence was any explanation to find for within- pressed durally unreasonable. insufficient range, revocation sentences afford given the amount of deference we b. these sen imposing district courts when tences; Having determined that the dis but a district court not explain trict failure to its chosen giving any indica impose sentence without Moulden, unreasonable, we must now doing reasons for so. tion of its plainly it so. To de at we to hold other consider whether was 478 F.3d 657. Were wise, plainly whether a is un effectively courts termine reasonable, any within- this Court looks defini- thwart review of * Appendix parties upon appeal. filed Citations to J.A.—refer to the Joint analysis. IV. plain-error used in “plain”

tion of at 439. For a sentence Crudup, 461 F.3d reasons, foregoing For the we vacate unreasonable, therefore, it to be Thompson’s sentence and remand to the clearly settled law. See run afoul of must for a hearing. district court new Hughes, 401 F.3d United States AND REMANDED VACATED (4th Cir.2005), NIEMEYER, Judge, dissenting: Circuit the law as it It is indeed true sentencing is in a state of relates to federal Barry Thompson violated the terms of Court, flux, that this like our sister supervised being release arrested on circuits, imple- process is still officers; assaulting police two counts for re- menting many Supreme Court’s by possessing methamphetamine; See, pronouncements. e.g., Lynn, cent testing positive twice for cocaine. The 575; Carter, 564 F.3d at 330. Wе are district court revoked his re- certain, though, that the district court’s imposed lease and an 18-month sentence obligation appel- some basis for imprisonment, which was within the *5 a imposing late review when revocation range Sentencing recommended the may minimal that however basis Guidelines. be, in has been settled this Circuit since at Ordinarily, we review a sentence under 478 F.3d at 657. least Moulden. Given standard, a deferential abuse-of-discretion is, clearly requirement how settled reversing only for unreasonableness. ‍‌‌‌‌​‌‌​‌​​​​‌​‌‌​​‌​​​‌‌​​‌‌​​​​‌​​​​‌​‌‌​‌​‌​​‍See sentences, applies it to revocation even as States, Gall v. United 128 any the district court’s failure to (2007). 586, 169 L.Ed.2d 445 But in S.Ct. reasons its contravened clear super- a sentence for violation of was, therefore, precedent circuit plain- release, yet vised our standard is more ly unreasonable. deferential, only as we reverse if we “plainly

find the sentence was unreason- c. able.” Crudup, See United States v. 461 (4th Cir.2006). F.3d 438 Finally, we cannot be sure that the dis- respectfully I majority submit that the justify trict court’s failure to the sentence in opinion this case affords the district imposed procedural was For a harmless. deference, court an inadequate measure of harmless, sentencing gov- error to be the demanding that district court the state prove ernment must that the error did not “ record, reasons that are obvious from the injurious have ‘substantial and effect or arguments from the counsel made to the Lynn, influence’ on the result.” at 585 court, and from what the court said and Curbelo, (quoting Unitеd States v. did. (4th Cir.2003)). Here, the argue does not that multiple the error The court found violations of harmless, presume supervised was and we cannot that the of Thompson’s terms re- explained it was under these circumstances. Had lease. It that the violations explicitly Thompson’s considered grade,” resulting were of the “most serious argument non-frivolous that he in a deserved Guidelines to 18 months’ leniency he completed nearly imprisonment. imposed because had It a sentence supervised all of his range. release without inci- within the recommended Guidelines dent, conceivably given explainеd, denying it could have him a It in op- the portunity voluntarily lower sentence. See id. to surrender that it (as denied) him no one before he Thompson was “not not find that thought the in the Guide- finally, And it Commission community.” danger to the that lines had determined explained: in mine run proper roughly thought I long stretch. You did such cases; аnd he found that perjury similar got make it. You’ve going to you were personal circumstances here were Rita’s release when months of simply enough not different to warrant a you If can the next time. you get out different sentence. But context and the trouble, in getting that just do without this, similar, record made clear that hope you free of this stuff. you can be reasoning judge’s underlies the conclu- you. that. luck to can do Good conceptually a matter is sion. Where adequately record satisfies Su- in simple as the case hand and the sentencing in standard preme Court’s sentencing record makes сlear As range. within the Guidelines defendant judge argu- considered evidence and in Rita v. explained ments, do not re- we believe the law States: quires judge to write more exten- judge should set forth sively. satisfy enough 359, 127 parties’ argu- he has considered the strikingly The record this case is simi- a reasoned basis for ments and has Rita, presented except lar to that in this decisionmaking exercising legal his own case we the district court even more owe Nonetheless, judge when a authority. back, deference because the defendant was apply the Guidelines decides *6 sentenced, having originally after bеen case, doing so will not particular to a release. revocation See necessarily require lengthy explanation. Crudup, 461 at 438. make clear that well Circumstances judge upon his decision the rests majority opinion ar- properly While reasoning that own Commission’s ticulates the standards for dis- proper is a Guidelines sentence holding in trict court’s its 3553(a) (in and other con- terms of specific case falls elsewhere. mandates) case, typical gressional judge that the found that the case typical. him is before 338, 356-57, S.Ct. (2007) added) (cita- (emphasis

L.Ed.2d 203 omitted). Rita, In GAO, Petitioner, Zhan counsel, arguments judge listened requested departure, a downward HOLDER, Jr., Attorney H. Eric that a sentence and then observed General, Respondent. at the bottom end of the Guidelines No. 07-2070. 358-59, “appropriate.” explanation, Approving 2456. Appeals, United States Court of appro- particularly the Court said what is Fourth Circuit. here: priate Argued Dec. judge might acknowledge that We 23, 2010. Decided Feb. have might have said more. He added explicitly that he had heard and consid- argument;

ered the evidence