                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 13-1217
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                               TIMOTHY M. RISSMILLER
                                    a/k/a Timmy,
                                              Appellant
                                    ___________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-05-cr-00202-001)
                         District Judge: Honorable Yvette Kane
                                      ___________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 27, 2013

         Before:    CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges.

                                   (Filed: March 4, 2014)
                                        ___________

                                         OPINION
                                        ___________

VANASKIE, Circuit Judge.

       Appellant Timothy M. Rissmiller appeals his sentence following the revocation of

his supervised release, arguing that the sentence was procedurally unreasonable because

the District Court failed to give proper consideration to the relevant factors set forth in 18
U.S.C. § 3553(a), as required by 18 U.S.C. § 3583(e), and did not explain its variance

above the advisory Guidelines range. Because the District Court committed procedural

error in imposing its sentence, we will vacate the sentence and remand for re-sentencing.

                                              I.

       Rissmiller pled guilty to child pornography charges in 2005 and received a

sentence of seventy months’ imprisonment, three years of supervised release, and fines

and assessments. After he was released from prison, his first term of supervised release

was revoked for using a computer with online access without authorization, failing to

answer all inquiries by his probation officer truthfully, and failing to participate in and

comply with all of the requirements of a sex offender treatment plan. The District Court

sentenced him to nine months’ imprisonment for these violations of the conditions of

supervised release, and imposed two years of supervised release.

       Relevant to this appeal, in October of 2012, during Rissmiller’s second period of

supervised release, a probation officer found a legally available photography book at

Rissmiller’s residence that contained a picture of a minor girl in her underwear. The

probation officer also discovered books that included erotica and fantasies of deviant

sexual behavior. At the recommendation of the probation officer, Rissmiller disclosed

his possession of those materials, and his use of them for sexual gratification, to his

counselors at the sex offender counseling program in which he was participating.

Because the possession and use of those materials violated the counseling program’s

treatment requirements, the counseling program “unsuccessfully discharged” him from

the program. (App. 13.) After Rissmiller’s discharge from that program, the probation

                                              2
office petitioned the District Court to revoke supervised release on the ground that failure

to abide by the treatment provider’s requirements violated the following special condition

of supervision:

              The defendant shall participate, at the Defendant’s expense,
              in a sex offender treatment program, which may include risk
              assessment testing, counseling and therapeutic polygraph
              examinations, and shall comply with all requirements of the
              treatment provider. The treatment is to be conducted by a
              therapist approved by the probation officer.

(App. 16.)

       The District Court issued a warrant for Rissmiller’s arrest and scheduled a hearing

on the petition for revocation of supervised release. A “dispositional report” was

prepared by the probation office in advance of the hearing. The report indicated that,

pursuant to U.S.S.G. § 7B1.4(a), the advisory Guidelines range was three to nine months’

imprisonment, based on a Grade C violation and a criminal history category of I.

       During the ensuing hearing, Rissmiller did not contest the charge that his failure to

abide by the treatment provider’s requirements and termination from the sex offender

treatment program violated a condition of supervised release. Instead, Rissmiller argued

that his discharge from the treatment program warranted at most a six month stay in a

half-way house. This District Court disagreed, stating:

                     All right. I appreciate the arguments of counsel. I
              would like to find that Mr. Rissmiller is engaged in a
              harmless exercise of his right to own his sexual being, but I
              don’t believe that’s what has occurred here. He’s already
              violated the Court’s orders once and been revoked. And here,
              he is again deliberately seeking out materials, whether they
              are readily available on the legal market or otherwise


                                             3
             including a seemingly harmless photo book, that will support
             his interest in arousal by things related to children.

                    I find that the treatment provider was absolutely
             correct in rejecting him from the program.           He has
             demonstrated a calculated effort to walk what I think is a
             dangerous line. He’s been very cunning, very calculating in
             seeking out those materials that will give him the sexual
             satisfaction that he seeks while at the same time he believes
             staying within the lines.

                     He expresses surprise that these materials were outside
             the permissible materials in the treatment provider’s
             agreement with him, but I don’t think there was any surprise
             here at all. I think he knew exactly what he was doing and he
             is rightfully in violation not only of the treatment provider’s
             agreement with him but of the Court’s orders.

                    The Court finds that the Defendant, Timothy M.
             Rissmiller, has violated the terms and conditions of
             supervised release and, therefore, revokes the Defendant’s
             term of supervised release.

                    Pursuant to the Sentencing Reform Act of 1984, and in
             view of the considerations expressed in 18 U.S.C. 3553(a), it
             is the judgment of the Court that the Defendant, Timothy
             Rissmiller, is hereby committed to the custody of the Bureau
             of Prisons to be imprisoned for a term of 12 months.

(App. 116-17.)

      The District Court did not make any finding as to the applicable advisory

Guideline imprisonment range. Moreover, and perhaps as a result, the record does not

disclose the reason the District Court imposed a sentence that was tantamount to a

variance above the advisory guideline range. 1


      1
         Both Rissmiller and the Government agree that, under our precedents, the fact
that Rissmiller recently completed the incarceration component of the supervised release
revocation sentence does not moot this appeal because he is now subject to an additional
                                            4
                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate

jurisdiction under 18 U.S.C. § 3742(a)(1)-(3) and 28 U.S.C. § 1291.

       We review both the procedural and substantive reasonableness of a sentence

following revocation of supervised release for abuse of discretion. United States v. Doe,

617 F.3d 766, 769 (3d Cir. 2010). To satisfy the procedural requirements in imposing a

sentence, “[a] sentencing court must (1) calculate the advisory Guidelines range, (2)

formally rule on any departure motions and state how those rulings affect the advisory

range, and (3) exercise its discretion pursuant to the factors set forth in § 3553(a).”

United States v. Clark, 726 F.3d 496, 500 (3d Cir. 2013). In the revocation context, 18

U.S.C. § 3583(e) enumerates the relevant § 3553(a) factors that the district court must

consider. While a district court “need not discuss and make findings as to each of the §

3553(a) factors,” the district court must provide some statement that enables us to

“understand the rationale by which [the] district court reache[d] a final sentence.” Clark,

726 F.3d at 502 (alterations in original) (internal quotation marks omitted).

       Rissmiller argues that the sentence the District Court imposed was procedurally

unreasonable because it failed to give proper consideration to the relevant § 3553(a)

factors and to explain its variance from the advisory Guidelines range. Our review of the

record compels us to conclude that the District Court committed procedural error in

imposing its sentence.


period of supervised release. See, e.g., United States v. Carelock, 459 F.3d 437, 438 n.1
(3d Cir. 2006).
                                              5
         First, contrary to the three-step procedural requirement for imposing a sentence

referenced above, see Clark, 726 F.3d at 500, the District Court did not state what it

found to be the applicable Guidelines range. 2 While the probation office’s dispositional

report included the relevant Guideline information, the District Court never referenced or

adopted those calculations. Failure to calculate the Guidelines range thus constituted

error.

         Second, the District Court did not explain why it varied above the advisory

guideline range and could have been more thorough in its discussion of the 3553(a)

factors. Before finding that Rissmiller violated a special condition of his supervised

release, the District Court observed that he had previously violated conditions during his


         2
         Rissmiller did not object during sentencing to the District Court’s failure to place
a Guidelines calculation on the record. Therefore, we apply plain error review. Fed. R.
Crim. P. 52(b). Thus, we will vacate the sentence only if we conclude that: (1) there was
an error; (2) the error was “plain,” that is, clear or obvious; (3) the error affects
substantial rights, which “in most cases” means that the error was prejudicial; and (4) the
error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 732-36 (1993). As explained in the text, the
District Court’s failure to place a Guidelines calculation on the record was an error, and
the error is, in retrospect, obvious. As to elements 3 and 4, it appears that failure to
calculate a Guidelines range is prejudicial and can be said to affect the fairness of the
sentencing proceeding. “[D]ifferent procedures may lead to different sentences, and thus
an error of procedure is seldom harmless. It is difficult to conclude that a District Court
would have reached the same result in a given case merely because it could have
reasonably imposed the same sentence on a defendant.” United States v. Vazquez-
Lebron, 582 F.3d 443, 447 (3d Cir. 2009). We have thus stated, though in dictum, that
under plain error review, a “District Court’s failure to calculate a final guidelines range –
leaving us unable to review the procedural and substantive bases of the sentence – is an
error that is plain, that affects the substantial rights of the parties, and that could seriously
affect the fairness, integrity or public reputation of judicial proceedings.” United States
v. Fumo, 655 F.3d 288, 309 (3d Cir. 2011). For these reasons, neither Rissmiller’s failure
to directly raise this argument on appeal, nor his failure to object during sentencing,
prevent us from granting relief in the present appeal.
                                               6
first period of supervised release, which resulted in revocation, and, based on his conduct

in the present proceeding, opined that he was “deliberately seeking out materials . . . that

w[ould] support his interest in arousal by things related to children.” (App. 116.) The

District Court also expressed its belief that Rissmiller “knew exactly what he was doing”

by obtaining materials that were legally available, yet violated the requirements of the

treatment program. The District Court also appeared to recognize the need for specific

deterrence given Rissmiller’s knowing and purposeful possession of suspect materials

and the need to provide him custodial treatment given his failure to comply with the

outpatient treatment requirements, which are all relevant considerations under Sections

3553(a) and 3583(e).

       Those statements touch upon only the first § 3553(a) factor regarding “the nature

and circumstances of the offense and the history and characteristics of the defendant.”

See 18 U.S.C. § 3553(a)(1). In Clark, we recently vacated a sentence following

revocation of supervised release where the district court “focused its § 3553(a) discussion

on § 3553(a)(1),” but thereafter “merely enumerated the remaining § 3553(a) factors.”

Clark, 726 F.3d at 502-03. Similarly, assuming the District Court’s discussion in this

matter related to § 3553(a)(1), the absence of any further substantive discussion of the

relevant remaining § 3553(a) factors leaves us unable to “determine, from the record

before us, that the court ‘reasonably applied those factors to the circumstance of the

case.’” Id. at 503 (quoting United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007)).

For the same reasons, we are unable to review the reasonableness of a sentence that

varies above the advisory guideline range. The lack of elaboration in this case is

                                              7
particularly problematic given that the District Court did not state the applicable

Guidelines range on the record but, nevertheless, imposed a sentence above the probation

officer’s recommended Guidelines range.

       Because of these procedural errors, we must conclude that the District Court

imposed a procedurally unreasonable sentence, and therefore abused its discretion. As in

Grier, “[w]e do not suggest that the original sentence reflects anything less than the

sound judgment of the District Judge, or that the final sentence should necessarily differ

from the one previously imposed.” Grier, 475 F.3d at 572. But, we will require upon

remand that the District Court expand upon its decision so as to explain the reasons for its

variance and reflect meaningful consideration of the relevant § 3553(a) factors.

                                            III.

       For the foregoing reasons, we will vacate the sentence of the District Court and

remand for further proceedings consistent with this opinion.




                                             8
