                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4118


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TASHELL ROMAINE WALLER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:98-cr-00192-JRS-1)


Argued:   December 12, 2013                 Decided:   December 23, 2013


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion. Judge
Shedd wrote a dissenting opinion.



ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Erik Sean Siebert, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON
BRIEF:   Michael   S.   Nachmanoff,   Federal  Public   Defender,
Alexandria, Virginia, Robert J. Wagner, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Tashell Romaine Waller appeals her eighteen-month sentence,

imposed       following        revocation       of    her     supervised release.

For    the      reasons      that    follow,    we    vacate       and     remand   for

resentencing.

       Waller      completed    her    incarceration         for   possession       with

intent to distribute crack cocaine and using and carrying a

firearm in relation to a drug trafficking offense in 2008 and

thereafter began serving a five-year term of supervised release.

Beginning in 2010, Waller violated several conditions of her

supervised release. She admitted to all of the violations, and

the district court gave her numerous opportunities to correct

her conduct. Finally, at her fourth and final violation hearing

held     in     February      2013,     the    district       court       revoked   her

supervised         release     and    sentenced      her    to eighteen months of

imprisonment.

       At the final revocation hearing, the Government sought a

twenty-four-month         sentence,     pointing      to    the    numerous    chances

Waller       had    to     conform      her     conduct      to     the     terms    of

supervision and the fact that                  Waller had attempted to evade

discovery of her drug use. In contrast, defense counsel sought

home detention in light of Waller’s responsibilities for her

children. Waller          personally     addressed     the    court. The district

court addressed Waller at some length and                     noted in particular

                                          2
that    Waller’s       attempt    to   defeat       her    drug test was a knowing

and intentional effort to violate the court’s order and could

not    be   “left       without    some      discipline.” J.A. 55. The                    court

revoked     Waller’s      supervised       release        and   imposed an eighteen-

month sentence.

       At the February 2013 hearing, neither the court nor the

parties referred to the Guidelines Manual policy statement and

corresponding          table   suggesting         3-9     months       of     imprisonment

for    commission        of the    grade     C    violations by         a person, like

Waller,     in    criminal       history category I. See U.S.                   Sentencing

Guidelines Manual § 7B1.4 (2012).

       The issue before us is whether the district court committed

reversible error in failing to consider, on the record, Waller’s

applicable policy statement range.

       Generally,       we     will    affirm       a     sentence          imposed       after

revocation of supervised release unless that sentence is plainly

unreasonable. See United States v. Crudup, 461 F.3d 433, 437

(4th Cir. 2006). A district court “need not be as detailed or

specific when          imposing    a   revocation         sentence      as    it    must     be

when imposing a          post-conviction          sentence[.]” United           States       v.

Thompson,        595    F.3d   544,    547       (4th   Cir.    2010)       (citation       and

internal     quotation         omitted).         But,     we    have    held       that     the

sentencing court “must consider the policy statements contained

in Chapter 7, including the policy statement range, as ‘helpful

                                             3
assistance,’ and must also consider the applicable [18 U.S.C.]

§ 3553(a) factors.” United States v. Moulden, 478 F.3d 652, 656

(4th Cir. 2007) (quoting Crudup, 461 F.3d at 439); see also

Thompson, 595 F.3d at 547.

       Here, the district court may well have considered many of

the applicable § 3553(a) factors, which the Government argues

were explicitly discussed in earlier revocation hearings. But the

last       such   hearing    occurred      two        years   earlier.    And       more

importantly, at the February 2013 hearing, the court failed to
                                                                                1
indicate any consideration of the policy statement range.                           The

Government also argues that the parties and court had a worksheet

setting      forth   the    Guidelines     range.      The    certified   record     on

appeal,      however,      contains   no       such    worksheet,    although       the

Government,       over     Waller’s   objection,         tardily    submitted       the

worksheet to the argument panel. In any event, the mere fact that

a Probation Officer prepared a worksheet does not establish, on

the present record, that the court actually considered the policy


       1
       The Government relies on United States v. Davis, 53 F.3d
638 (4th Cir. 1995), in which we held that the sentencing court
does not need to specifically mention the Guidelines range in
order to establish that it considered the relevant policy
statement. There are, however, critical differences between the
facts in Davis and the record before us here. In Davis, the
policy statement range was referenced repeatedly on the record
and the supervised release worksheet was put on the record. 53
F.3d at 642. Nothing of the sort occurred here. In the face of
such a record, Davis is plainly distinguishable and we therefore
decline the Government’s invitation to presume that the court
actually considered the policy statement range.
                                           4
statement range. We therefore         conclude     that     Waller’s sentence

was procedurally unreasonable.

     “For a sentence to be plainly unreasonable, . . . it must

run afoul of clearly settled law.” Thompson, 595 F.3d at 548

(citation omitted). In this case, the mandate that a sentencing

court must consider the Chapter 7 policy statement range has been

clearly settled since at least 2007, the date of our Moulden
            2
decision.       Because   Waller’s   sentence    violated    Moulden’s       clear

language, it was plainly unreasonable.

     The Government argues that any error was                harmless because

the district court’s explicit consideration of Waller’s policy

statement range would not have affected her sentence.                  Although

the contention is not without force,             we   cannot      conclude    that

the error here was harmless.

     As described above,       the    district    court     is    charged    with

providing       an individualized    explanation      for   its    decision    to

deviate from the policy statement range. Moulden, 478 F.3d at

657. We have carefully reviewed the court’s statements at the

sentencing proceeding. Those statements do indeed suggest that

it was unlikely to sentence Waller within the policy statement

range. Nevertheless, we are not unconditionally persuaded that

     2
       Indeed, we came to this precise conclusion in April of this
year in an unpublished decision, United States v. Stallins, 521
Fed. App’x 104, 107 (4th Cir. 2013). Of course, at the time of
Waller’s violation hearing in February 2013, the district court
did not have the benefit of our Stallins opinion.
                                      5
the court intended to deviate upward from the policy statement

range. Similarly, that the court may have articulated reasons

sufficient   to    support      an   eighteen–month        sentence   does    not,

standing alone, provide “fair assurance” that the court would

have given the same sentence if the record demonstrated that

it had considered        the    policy       statement    range. United     States

v.   Boulware,     604   F.3d    832,        838   (4th   Cir.   2010).     “For   a

procedural sentencing error to be harmless, the government must

prove that the error did not have a substantial and injurious

effect or influence on the result.” Thompson, 595 F.3d at 548

(internal citation omitted). Here, if the court had explicitly

considered       Waller’s      policy        statement     range,     “it    could

conceivably have given [her] a lower sentence.” Id.

     For the reasons set forth, therefore, we vacate the judgment

and remand for resentencing in conformity with this opinion. 3



                                                           VACATED AND REMANDED




     3
       We deny as moot Waller’s motion to strike the supervised
release violation worksheet.
                                         6
SHEDD, Circuit Judge, dissenting:

      The issue presented in this appeal is whether the district

court properly considered the Guideline Policy statements during

a supervised release revocation hearing. I believe the court did,

and therefore I respectfully dissent.

      Here, Waller had an initial revocation hearing on March 22,

2011, at which hearing the district court clearly knew the policy

statement range was three to nine months. The district court

found    violations,     but    continued     sentencing     to    give      Waller   a

chance to correct her behavior. This leniency did not work, and

Waller violated again in May 2011. But in a further effort to

work with the defendant, the district court continued Waller on

her   supervised    release     under    the    same     terms    and    conditions.

Despite the district court’s best efforts to work with Waller,

she   violated    her   conditions      again   several     more    times      between

October and December 2012. At a third court hearing, after Waller

had failed two opportunities to follow her release conditions,

the district court imposed a sentence of eighteen months.

      Waller now asserts that although the district court had the

range before it at her first revocation hearing, somehow it was

unaware    of    that   range    when   it     finally    imposed       a    sentence.

Waller’s argument is undercut by the precedent of this Circuit.

There is simply no question that the district court knew the

policy    statement     range   at   the     first   hearing.      The      government

                                         7
stated the range in open court, and Waller does not challenge the

fact   that    the     court,    the     government,         and   she   all    had    the

probation officer’s worksheet which reflected the three to nine

month range. Over the course of the hearings, it is absolutely

clear that the district court was well aware of Waller’s conduct

and the issues affecting her sentencing. The court listened to

argument and recommendations for sentencing from both Waller and

the government, and then imposed a sentence that was between the

two recommendations.

       Here,    to     comply     with      procedural         reasonableness,         the

sentencing     court      must   consider       the    policy      statement    and    the

circumstances of the individual defendant, but our precedent does

not require that the consideration of the policy statement be

explicit:

       The flaw in [the] argument here is [the] assumption
       that the district court did not consider the relevant
       policy statement. . . . The fact that the district
       court did not mention the three to nine month range
       provided by the policy statement is not dispositive. A
       court need not engage in ritualistic incantation in
       order to establish its consideration of a legal issue.
       It is sufficient if, as in the case at bar, the
       district court rules on issues that have been fully
       presented for determination. Consideration is implicit
       in the court's ultimate ruling.

United   States      v.    Davis,    53     F.3d      638,   642    (4th     Cir.     1995)

(emphasis      added).     Because     it       is    abundantly     clear     that    the

district court knew the policy statement range for Waller and



                                            8
gave   both   sides   the   opportunity   to   present   arguments   on   the

appropriate sentence upon revocation, I would affirm.




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