                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-4497


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MONTOYUA WALLER,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00303-NCT-1)


Submitted:   June 30, 2015                 Decided:   July 21, 2015


Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Kathleen   A.  Gleason,   Assistant  Federal  Public  Defenders,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Michael A. DeFranco, Assistant United States
Attorney, Alena K. Baker, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Montoyua       Waller       appeals     the      district        court’s       judgment

revoking his term of supervised release and sentencing him to a

term of 48 months’ imprisonment.                     Waller’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious grounds for appeal but

questioning       whether     the    district         court    properly          found     that

Waller    had     committed      a   Grade       A    violation       and       whether     his

48-month sentence is substantively reasonable.                         Waller has filed

a   pro    se    supplemental        brief       reiterating         issues       raised    by

counsel.        At our request, counsel and the government submitted

supplemental       briefs    addressing          whether      Waller’s          sentence    was

plainly    unreasonable          because     the      district       court        failed     to

adequately explain its chosen sentence.                        For the reasons that

follow, we affirm in part and vacate and remand in part for

resentencing.

     To revoke supervised release, a district court need only

find a violation of a condition of release by a preponderance of

the evidence.        18 U.S.C. § 3583(e)(3) (2012).                         “We review a

district    court’s     ultimate       decision         to    revoke        a    defendant’s

supervised release for abuse of discretion” and its “factual

findings    underlying       a    revocation         for     clear    error.”            United

States v. Padgett, ___ F.3d ___,                           , Nos. 14-4625, 14-4627,

2015 WL 3561289, at *1 (4th Cir. June 9, 2015).                                  Credibility

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determinations made by the district court at revocation hearings

rarely are reversed on appeal.                  See United States v. Cates, 613

F.3d     856,      858    (8th     Cir.    2010)        (“Witness     credibility       is

quintessentially a judgment call and virtually unassailable on

appeal.”         (internal   quotation      marks        omitted)).         Because    the

standard of proof is less than that required for a criminal

conviction, the district court may find that the defendant has

violated a condition of his supervised release based on its own

finding      of    new   criminal     conduct,      even     if    the    defendant     is

acquitted on criminal charges arising from the same conduct, or

if   the    charges      against     him   are    dropped.          United    States    v.

Stephenson, 928 F.2d 728, 732 (6th Cir. 1991).

        Counsel        questions    whether       the    district     court    properly

found a Grade A violation based on Waller’s new criminal charges

of     felony      second    degree       kidnapping       and    felony     extortion.

Counsel argues that the court failed to give any weight to the

fact that Waller himself called the police during the offense,

and failed to consider how this bolstered Waller’s credibility.

Additionally, counsel argues that the district court erred in

denying Waller’s request that the government take more exemplars

of   the    victim’s     handwriting,       and    that     the   court     should     have

reopened         the   evidentiary    portion       of    the     hearing.      Counsel

further asserts that because all of the criminal charges upon

which      the    supervised     release    violation       was     based    were     later

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dismissed    or     acquitted,     the        finding          of   a     supervised      release

violation should be reversed.

      We have thoroughly considered these claims in light of the

record, including the transcript of the revocation hearing at

which both Waller and the victim testified.                                We find no clear

error in the district court’s factual findings, and that the

government proved the Grade A violation by a preponderance of

the     evidence.        Accordingly,                 the     claims      lack     merit,      and

revocation of Waller’s supervised release was not an abuse of

discretion.

      We now turn to the reasonableness of Waller’s sentence.                                   “A

district court has broad discretion when imposing a sentence

upon revocation of supervised release.”                             United States v. Webb,

738 F.3d 638, 640 (4th Cir. 2013).                          “We will affirm a revocation

sentence    if    it    is    within        the       statutory         maximum    and    is   not

plainly unreasonable.”            Id. (internal quotation marks omitted).

“When     reviewing      whether        a     revocation            sentence       is     plainly

unreasonable, we must first determine whether it is unreasonable

at all.”    United States v. Thompson, 595 F.3d 544, 546 (4th Cir.

2010).     A sentence is plainly unreasonable if it “run[s] afoul

of clearly settled law.”           Id. at 548.

      A   revocation         sentence       is    procedurally            reasonable      if   the

district      court      adequately              explains           the     sentence        after

considering       the   Sentencing          Guidelines’             Chapter       Seven    policy

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statements       and     the      applicable          18     U.S.C.    § 3553(a)       (2012)

factors.       See 18 U.S.C. § 3583(e) (2012); Thompson, 595 F.3d at

546-47.        “Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

the     record     an       ‘individualized            assessment’          based     on     the

particular       facts      of   the    case    before       it.”      United       States    v.

Carter,    564    F.3d      325,    330    (4th       Cir.    2009)    (quoting       Gall    v.

United States, 552 U.S. 38, 50 (2007)).                        “A court need not be as

detailed or specific when imposing a revocation sentence as it

must be when imposing a post-conviction sentence, but it still

must provide a statement of reasons for the sentence imposed.”

Thompson, 595 F.3d at 547 (internal quotation marks omitted).

      Counsel and Waller argued at sentencing that a sentence

below    the    policy      statement         range    was    appropriate       due    to    the

circumstances          of    the        offense,       specifically          the      victim’s

provocation of the offense conduct by stealing and abandoning

Waller’s       ex-wife’s         car.      Waller          pointed    out    that     he     had

befriended       and     mentored       the    victim,       that     he    himself     called

police multiple times as the offense was taking place, and that

he needed to stay out of prison in order to support his family.

Waller asserted that it was the victim’s idea to attempt to

extort money from his girlfriend to pay for the damage to the

car and the lost keys.



                                                5
       When the court pronounced the sentence of 48 months, which

was at the low end of the policy statement range of 46 to 52

months, the court did not cite or track the 18 U.S.C. § 3553(a)

factors, explain what factors had been considered, or otherwise

articulate how it had weighed the parties’ arguments.                         Even for

revocation          sentences    within    the    policy     statement    range,      “a

district court may not simply impose sentence without giving any

indication of its reasons for doing so.”                    Id. at 547.   While the

court       asked    questions     and    made    comments     at   the   sentencing

hearing and was clearly very engaged, the court was cut off by

Waller after pronouncing the sentence, and thereafter did not

provide any explanation of its chosen sentence.

       Accordingly, being mindful that a sufficient explanation is

necessary      “to     allow     for   meaningful     appellate     review     and    to

promote the perception of fair sentencing,” Gall, 552 U.S. at

50, we vacate the sentence and remand for resentencing.                               We

express no opinion regarding the merits of Waller’s request for

a lower sentence.              In accordance with Anders, we have reviewed

the entire record and have found no other meritorious issues for

review.       We therefore affirm all other aspects of the district

court’s      judgment.          This   court     requires    that   counsel     inform

Waller, in writing, of his right to petition the Supreme Court

of the United States for further review.                       If Waller requests

that    a    petition     be    filed,    but    counsel    believes   that    such    a

                                            6
petition would be frivolous, counsel may move in this court for

leave to withdraw from representation.           Counsel’s motion must

state that a copy thereof was served on Waller.                 We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   this    court   and

argument would not aid the decisional process.



                                                     AFFIRMED IN PART;
                                          VACATED IN PART AND REMANDED




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