                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4308


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

ALVIN STALLINS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:03-cr-00021-RAJ-TEM-1)


Argued:   March 22, 2013                    Decided:   April 5, 2013


Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.   Michael F. Murray, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.    ON BRIEF:   Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, Richard J. Colgan, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Norfolk, Virginia, for Appellant.      Neil H. MacBride, United
States   Attorney,  Alexandria,   Virginia,  William   D.  Muhr,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Alvin       Stallins     appeals       a     36-month     sentence,          imposed

following revocation of his supervised release.                       For the reasons

that follow, we vacate and remand for resentencing.



                                          I.

      In   April     2003,     Stallins      pled     guilty     to    one    count       of

possession with intent to distribute cocaine base and one count

of possession of a firearm as a felon.                      He received a sentence

of    121-months’     imprisonment,          and     five     years    of     supervised

release.

      In   July      2008,     the    district       court     reduced       Stallins’s

sentence     to    100-months’       imprisonment         pursuant     to    18     U.S.C.

§ 3582(c).        In October 2009, the court again reduced Stallins’s

sentence, this time to 76-months’ imprisonment, pursuant to the

Government’s substantial assistance motion.                      Later that month,

Stallins was released from prison and began his five-year term

of supervised release.

      In   January     2011,     Stallins’s         probation       officer       filed    a

petition   seeking     revocation       of       Stallins’s    supervised         release.

The   petition      listed     multiple          violations    of     the     supervised

release    conditions,       including           Stallins’s    recent       arrest        for

possession    of     cocaine    with     intent      to   distribute        and    several

firearms offenses.       The probation officer later filed addenda to

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the petition, stating that the firearm charges had been nolle

prossed and that Stallins had pled guilty to the cocaine charge

and received a sentence of seven-years’ imprisonment.

     On March 26, 2012, the district court held a supervised

release     violation       hearing.         Stallins        admitted       to    multiple

violations       of   the      conditions       of     his       supervised       release,

including his possession with intent to distribute cocaine, his

failure     to    submit       monthly    supervised         release       reports,      his

failure to submit to drug testing, and his possession of cocaine

based on positive drug tests.                  Based on those admissions, the

court   found     Stallins      in    violation      of    his    supervised       release

conditions, and revoked his supervised release.

     The Government asked the court to sentence Stallins to the

statutory    maximum       36-months’     imprisonment           because    his    cocaine

violation was identical to the conduct underlying his original

federal    conviction       for   which    he    had      been    serving     a   term    of

supervised       release.         Stallins      maintained         that     he    did    not

actually     receive       a    significant       benefit        from      his    sentence

reductions because they came so late in his sentence, that his

state court sentence was particularly harsh, and that the birth

of his son had “profoundly changed his attitude.”                                 On these

grounds,    he    requested       a   “short”     revocation        sentence       running

concurrent to the state court sentence.                      Neither the court nor

any party referred to the Guidelines Manual policy statement and

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table suggesting a 24- to 30-months’ imprisonment for commission

of a grade A probation violation, like Stallins’s, by a person

with his criminal history category (IV).                  See U.S.S.G. § 7B1.4.

      The court sentenced Stallins to the statutory maximum of

36-months’ imprisonment to run consecutive to his state court

sentence.     The court chastised Stallins, finding it “inexcusable

that you are back in here again.”                 The court emphasized that the

law   had    not     mandated        any   sentence      reduction,      rather   the

reductions were “purely the Judge . . . trusting you and giving

you a chance.”       Instead of taking advantage of that opportunity,

Stallins had started “sneaking around dealing some drugs again.”



                                           II.

      We affirm a sentence imposed after revocation of supervised

release     unless   that   sentence         is   plainly     unreasonable.       See

United States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006).

Stallins    maintains    that        the   sentence      he   received   is    plainly

procedurally unreasonable because the court failed to consider

the applicable policy statement range.

      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).                  But it “must consider the policy

statements     contained        in     Chapter      7,    including      the   policy

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statement range, as ‘helpful assistance,’ and must also consider

the applicable § 3553(a) factors.”                         United States v. Moulden,

478 F.3d 652, 656 (4th Cir. 2007) (emphasis added); see also

Thompson, 595 F.3d at 547.

      Here,       the        district          court    may     well     have      (at     least

implicitly) considered many of the applicable § 3553(a) factors.

But   it    failed          to    indicate      any     consideration      of     the    policy

statement range for revocation sentences.                         The Government admits

that the court did not calculate or recite the policy statement

range,     but    argues          that    it   considered       the    range     because    “the

normal practice” in that district “is for the probation officer

to provide the district court and the parties with a worksheet

setting     forth           the    guideline       range.”        However,        the    record

contains no such worksheet in this case.                               Nor would the mere

presence of a worksheet in the record demonstrate that the court

actually      considered            the    policy       statement       range.      Moreover,

nothing     in        the    hearing       transcript      even       implies,     let     alone

demonstrates,           that       the     court       considered       Stallins’s       policy

statement range during sentencing. *                           Facing such a dearth of

evidence,        we    cannot       presume      that    the    court    did     consider    the


      *
       For these reasons, we deny the Government’s motion to file
a supplemental joint appendix containing a supervised release
violation worksheet purportedly given to the district judge at
sentencing but not filed with the clerk of court.



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policy statement range.                Therefore, we conclude that Stallins’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.

In this case, the mandate in Moulden that a sentencing court

must consider         the      Chapter    7     policy     statement      range         has    been

clearly      settled        since      2007.          Because      Stallins’s            sentence

violated Moulden’s clear language, it was plainly unreasonable.

       The     Government           suggests,       however,    that        any     error       was

ultimately       harmless           because     the       district      court’s          explicit

consideration         of    Stallins’s        policy      statement     range       would       not

have    affected       his      sentence.           The    Government         maintains         the

court’s      comments          at    sentencing       “made     plain       that        [it]   was

finished with granting leniency to the defendant,” and that the

court ultimately “articulated sufficient reasons for giving the

defendant a 36-month revocation sentence.”

       Although       the       Government’s         contentions        are       not     without

merit,    we    cannot      conclude      that      the    error     here     was       harmless.

Under Crudup, the district court is charged with providing an

individualized explanation for its decision to deviate from the

policy statement range.                461 F.3d at 439; see also Moulden, 478

F.3d    at     657.        A    sentencing       court’s       indication          --     however

clear -- that it is “finished” granting a defendant sentencing

reductions does not in itself demonstrate that the court intends

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to deviate upward from the policy statement range.               Similarly,

that the court articulated reasons sufficient to support a 36-

month     sentence   does     not,    standing   alone,    provide   “fair

assurance” that the court would have given the same sentence if

it had considered the policy statement range.            See United States

v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010).            Rather, had the

court explicitly considered Stallins’s policy statement range,

“it     could   conceivably    have    given   him   a   lower   sentence.”

Thompson, 595 F.3d at 548.             Accordingly, we must vacate and

remand for resentencing.



                                      III.

      For the foregoing reasons, we vacate Stallins’s sentence

and remand to the district court for resentencing.



                                                     VACATED AND REMANDED




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