                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4037


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.

ERICK JEMONTA GIBBS,

             Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Fox, Senior District Judge. (7:13-cr-00110-F-1)


Argued: January 25, 2018                                          Decided: July 16, 2018


Before GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which
Judge Agee joined. Chief Judge Gregory wrote a dissenting opinion.


ARGUED: Sonya Maria Allen, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Donald Russell Pender, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Louis C. Allen, Acting Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-
Parker, First Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

      After Erick Gibbs admitted to four violations of the conditions of his supervised

release, the district court, upon giving its explanation for doing so, imposed the

Guidelines-recommended sentence of 24-months’ imprisonment. Gibbs contends that the

sentence was plainly procedurally unreasonable because the district court did not

adequately address his arguments in favor of a downward-variance sentence.               We

conclude, however, that the record amply demonstrates that the district court, in reaching

its decision to impose the recommended sentence, considered Gibbs’s arguments for a

downward variance and addressed several of them, while highlighting the seriousness of

the violations, as well as Gibbs’s extensive criminal history. Accordingly, we affirm.


                                            I

      Gibbs pleaded guilty in August 2010 to possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1), and thereafter he was sentenced to 36 months’

imprisonment and 3 years’ supervised release.

      Six months after Gibbs was released from prison, he was charged in state court for

possession of drug paraphernalia and, upon conviction, was sentenced to 45 days’

imprisonment, suspended, and 18 months’ probation. Then, in February 2013 and again

in August 2013, Gibbs tested positive for the use of marijuana. Finally, in February

2014, Gibbs participated in a conspiracy to traffic in heroin and maintained a vehicle,

dwelling, or place for controlled substances and, upon conviction, was sentenced to 19 to

32 months’ imprisonment. All four of these incidents violated the conditions of Gibbs’s


                                            2
supervised release, and Gibbs’s probation officer accordingly filed a motion for

revocation. At the revocation hearing, Gibbs admitted to all four violations, and the court

thus found “as a fact that the defendant violated the terms and conditions of his 2010

judgment.” The court concluded further that Gibbs’s drug trafficking offense was a

Grade A violation, the most serious. See U.S.S.G. § 7B1.1(a).

      As provided by the policy statements in Chapter 7 of the Sentencing Guidelines,

Gibbs’s Grade A violation mandates revocation of supervised release, see U.S.S.G.

§§ 7B1.1(a)(1), 7B1.3(a)(1), and when a Grade A violation is coupled with Gibbs’s

Criminal History Category VI, a sentence of 33 to 41 months’ imprisonment is

recommended, see id. § 7B1.4. But because the maximum revocation sentence that

Gibbs could receive, given his underlying conviction, was 24 months’ imprisonment, see

18 U.S.C. § 3583(e)(3), that sentence became his recommended sentence, U.S.S.G.

§ 7B1.4(b)(1). Counsel for both parties recognized as much.

      While presenting no evidence at the hearing, Gibbs’s counsel asked the court to

impose a downward-variance sentence of 12 months’ imprisonment based on three

“mitigation factors.” As she stated to the court, “There’s extreme hardship on his family.

There is the time already served [on the drug-trafficking conviction]. There may be,

thirdly, some discussion from the Government.”

       On the first factor, which was counsel’s main argument, counsel stated that a

24-month prison term would deprive Gibbs’s three children of significant income and a

stable home environment and would impose hardship on Gibbs’s mother, who had

relocated to care for the children during his absence, as his wife was deceased. With

                                            3
respect to Gibbs’s earning potential, counsel noted that Gibbs “went through a program

called Youth Build, where he learned a significant amount of skills. He can build a house

from the ground up, framing, painting, landscaping.”        She also pointed to Gibbs’s

employment, stating that Gibbs had been employed “at the House of Raeford, the chicken

plant” and at “Peters Landscaping Company, in Wilmington. He worked seven days,

from 10 to 3. So he has skills that he can build upon once he gets this behind him.”

Counsel also noted that Gibbs had been “working toward his GED.”

      On the second mitigation factor, counsel noted that Gibbs had already served 14

months on his drug-trafficking conviction and therefore argued that he had already been

duly punished.

      And on the third factor, she stated, “hopefully, the Government will discuss with

this Court” Gibbs’s assistance to law enforcement after his drug-trafficking conviction.

      Counsel then summarized Gibbs’s justification for a downward variance:

      Now, I’m asking for 12 months . . . [a]nd I do think that period of time will
      be enough time to not only punish Mr. Gibbs, but certainly deter him from
      any further conduct. But . . . it is [also] a reasonable time to be away from
      the unique and extraordinary situation that he has with his family. So that
      when he returns home, he can immediately jump in with the skills that he
      has and be able to provide resources for them[.]

      In response, the government argued that Gibbs’s Grade A violation was a “serious

charge” and that otherwise he had an extensive criminal history:

      200 bags of heroin was the amount that was involved with the second
      conviction in 2014. And Mr. Gibbs has had several prior drug convictions
      and has had 12 convictions prior to his federal sentence. And it’s over a
      six-year period. And several of those were assaultive in nature. He had
      two assaults. He had multiple resisting officers. So he has not had a good
      track record.

                                            4
The government noted further that one of the violations at issue — Gibbs’s possession of

drug paraphernalia — occurred within months after beginning his term of supervised

release.   But the government did acknowledge Gibbs’s cooperation with law

enforcement, explaining that “after the state [offense] with the 200 bags of heroin,

[Gibbs] did meet with ATF and did assist them . . . with regard to criminal activity in the

Wilmington area.”     The government allowed that although the information Gibbs

provided had not yet resulted in any charges, law enforcement officers believed that the

information was “helpful” and “truthful.”

       After the district court offered Gibbs the opportunity to speak on his own behalf,

which he declined to do, the court imposed the Guidelines’ recommended sentence of

24-months’ imprisonment. In doing so, it explained:

       On March 1st, 2013, the defendant pled guilty to misdemeanor possession
       of drug paraphernalia in Brunswick County District Court and was
       sentenced to 45 days’ imprisonment, suspended, 18 months of supervised
       probation. On January 19, 2015, the defendant was arrested and charged
       with felony conspiracy to traffic opium/heroin and felony maintain
       vehicle/dwelling/place for controlled substances. On September 17th,
       2015, defendant pled guilty to conspiracy to sell heroin and maintain a
       vehicle/dwelling/place for controlled substances. The court imposed a 19
       to 32 month term of imprisonment. On February 25th, 2013, and August
       1st, 2013, the defendant tested positive for marijuana.

       The defendant has a history of gang affiliation and has prior convictions for
       assault, marijuana possession, resisting a public officer, possession of
       stolen goods, trespass, possession of cocaine, possession of a firearm by a
       felon, possession of a handgun by a minor, carrying a concealed weapon,
       and driving while license revoked.

       He has a scant employment record and little in the way of marketable job
       skills. While on supervision, the defendant did make an effort to obtain his
       GED. Upon consideration of Chapter 7 of the [Sentencing Guidelines
       Manual] and the relevant factors listed in 18 U.S.C. § 3553(a), the

                                            5
       defendant’s term of supervision is revoked and the defendant is ordered to
       be committed to the custody of the [BOP] . . . for a period of 24 months.

When the court then asked defense counsel if she had anything further to add, she stated:

       Yes, Your Honor. I would ask you to reconsider the range of 24 months
       again — if nothing else, for the extreme hardship that it’s going to be on his
       family at this point. They have done a significant amount to try to mitigate
       this themselves. But him being away for two years, Your Honor, that’s
       [something] I believe . . . the Court can consider. I do not — as the United
       States has said, they believe that he should have . . . something coming off.

In response, the court said, “All right.” Then, after a “[b]rief pause in the proceeding” (as

noted in the transcript), the court stated, “No change. Twenty-four months.”

       From the district court’s judgment entered January 12, 2017, Gibbs appealed.


                                             II

       Gibbs contends that his sentencing was plainly unreasonable as a procedural

matter because the district court failed to address or addressed inadequately his

arguments for a downward-variance sentence. In particular, his counsel argues:

       Perhaps most troubling, the district court, with no explanation whatsoever,
       found Mr. Gibbs had “little in the way of marketable job skills.” This
       finding was strictly contrary to what defense counsel had asserted about her
       client and had offered as a mitigating factor, and yet the court did not
       explain why it believed Mr. Gibbs had little marketable job skills. Most of
       us cannot “build a house from the ground up.”

       The government responds that the court gave numerous reasons for imposing its

24-month term of imprisonment and that revocation sentences are subject to extra-

deferential review.    It points out that Gibbs’s violations of his supervised-release

conditions were sufficiently severe “breaches of trust” to outweigh the reasons that he

advanced in favor of a downward variance. And it argues that the district court gave

                                             6
Gibbs sufficient individualized consideration when imposing his revocation sentence,

emphasizing that it is clear that the court considered his arguments for a downward

variance, such that the court committed no procedural error in sentencing him, let alone

any error that was plain.

       The question thus presented is whether the district court provided an adequate

explanation when imposing Gibbs’s 24-month revocation sentence, given Gibbs’s

arguments for a downward variance.

       At the outset, it is important to review what is demanded of district courts in

imposing revocation sentences. When a defendant appears before a court for revocation

of his supervised release, he is already subject to the sentence of his criminal judgment,

about which he presumably received an appropriate explanation, including an explanation

of the range of sentence that could be imposed and why he was receiving a particular

sentence. He was also advised of his supervised release and the conditions imposed for

it. Thus, as the Sentencing Guidelines emphasize, when a defendant violates those

conditions, his violation is not treated as new criminal conduct but rather as a “breach of

trust” in failing to abide by the conditions of his original sentence, for which the law

imposes “sanctions.” U.S.S.G. ch. 7, pt. A, introductory cmt. 3(b); see also United States

v. Crudup, 461 F.3d 433, 437–38 (4th Cir. 2006). When such a violation also involves

criminal conduct, the Guidelines leave punishment for that “to the court responsible for

imposing the sentence for that offense.” Id. Recognizing the distinction between original

sentencing and revocation sentencing, the Sentencing Commission has adopted

“revocation policy statements” that provide sanctions for “three broad grades of

                                            7
violations,” formalizing an approach that provides district courts with “greater flexibility”

than would be provided by specific revocation guidelines to determine the appropriate

sanction. U.S.S.G. ch. 7, pt. A, introductory cmt. 3.

       Consistent with this framework, we have held that a court of appeals reviewing a

district court’s revocation sentence must adopt a more “deferential appellate posture”

than when reviewing original sentences to “account [for] the unique nature of supervised

release revocation sentences.” Crudup, 461 F.3d at 438–39 (citations omitted); see also

United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (describing the “modified

reasonableness analysis” for reviewing sentences imposed upon revocation of probation

and supervised release) (internal quotation marks omitted). In this vein, “a [district]

court’s statement of its reasons for going beyond non-binding policy statements in

imposing a [revocation] sentence . . . need not be as specific as has been required when

courts departed from guidelines that were, before Booker, considered to be mandatory.”

Crudup, 461 F.3d at 439 (quoting United States v. Lewis, 424 F.3d 239, 245 (2d Cir.

2005)). For these reasons, while original sentences are reviewed for “reasonableness,”

we have recognized that even an unreasonable revocation sentence may stand unless it is

plainly unreasonable. Id. at 438–39.

       This structure of appellate review of revocation sentences still addresses distinctly

both procedural reasonableness and substantive reasonableness, but on the more

deferential basis noted. A revocation sentence passes procedural muster if it is supported

by “a sufficient explanation so that we may effectively review the reasonableness of the

sentence,” which must encompass “an assurance that the sentencing court considered the

                                             8
[applicable sentencing] factors with regard to the particular defendant before [it] and also

considered any potentially meritorious arguments raised by the parties with regard to

sentencing.” Moulden, 478 F.3d at 657. And a sentence passes substantive muster if the

totality of the circumstances indicates that the court had a “‘proper basis for its

conclusion’ that the defendant should receive the sentence imposed.” United States v.

Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (quoting Crudup, 461 F.3d at 440).

       As with original sentencing, a revocation sentence that is within the recommended

Guidelines range is “presumed reasonable.” United States v. Webb, 738 F.3d 638, 642

(4th Cir. 2013). And although the procedural and substantive aspects of review are

distinct, less explanation is required for such a sentence than for a sentence that departs

from the Guidelines. See United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010)

(noting that less explanation is required when imposing a within-Guidelines range

revocation sentence); see also Rita v. United States, 551 U.S. 338, 356–57 (2007)

(applying same principle in the context of original sentencing). Similarly, “a major

departure [from the Guidelines] should be supported by a more significant justification

than a minor one.” Gall v. United States, 552 U.S. 38, 50 (2007); see also Slappy, 872

F.3d at 208 (concluding that the district court’s “failure to address [the defendant’s]

arguments in favor of a within-policy-statement-range sentence constitute[d] procedural

error”) (emphasis added); id. at 209 (explaining that “the court’s failure to address

Slappy’s nonfrivolous arguments in favor of a within-range sentence was compounded by

its failure to explain why it was necessary to impose the statutory maximum sentence”).



                                             9
       In this case, therefore, the dispositive question reduces to whether, in context, the

district court’s explanation of Gibbs’s sentence provided a sufficient assurance that it

considered his arguments for a downward variance. See Moulden, 478 F.3d at 657; see

also Slappy, 872 F.3d at 210 (holding that the explanation “must provide enough . . . to

assure this Court that it considered the parties’ arguments and had some basis for

choosing the imposed sentence”).

       Gibbs’s primary argument for why he should have received a downward-variance

sentence was that the recommended sentence would cause hardship to his family due to

both his absence and the loss of income that he otherwise could provide. In support of

this argument, Gibbs’s counsel asserted that Gibbs had certain job skills and a high

degree of employability, though Gibbs provided no evidence to support those assertions.

He now maintains that the district court responded to his arguments with a single

sentence — that Gibbs had “a scant employment record and little in the way of

marketable job skills” although he “did make an effort to obtain his GED” — contrary to

his counsel’s representations at the revocation hearing. Gibbs also emphasizes that, in

response to his request to reconsider the 24-month sentence “for the extreme hardship

that it’s going to be on his family,” the court stated simply, “No change.”

       We conclude, however, that the record supports the district court’s conclusion that

Gibbs had a “scant” employment record and job skills. Counsel for Gibbs stated at the

revocation hearing that Gibbs went through a program called “Youth Build” “where he

learned a significant amount of skills” relating to building a house. But she provided no

evidence that Gibbs ever applied that learning and used those skills. Indeed, in relating

                                            10
Gibbs’s job experience, counsel for Gibbs stated only that he had been employed at a

chicken plant and at a landscaping company, neither of which involved building a house

or even working on a house, and she never specified the duration of those positions.

Thus, it was hardly “contrary” to the record for the court to have concluded that Gibbs

had only scant work experience and job skills.

      And as to the hardship that a 24-month sentence would impose on Gibbs’s family,

the court clearly considered it. Indeed, when explicitly asked to do so, the court stated,

“All right.” After giving the argument thought, however, the court announced that it was

not prepared to deviate from the 24-month recommendation. In the same way, the court

considered and rejected Gibbs’s request for a downward variance based on his

cooperation with law enforcement. When Gibbs’s counsel asked the court to consider a

downward variance, “as the United States has said they believe that he should have . . .

something coming off,” the court’s response of “All right” also covered that request.

But, as noted, the court rejected the request, determining to remain with the

recommended 24-month sentence.

      This consideration of Gibbs’s arguments comports with the standard for original

sentencing articulated in Rita and, a fortiori, satisfies the more relaxed standard for

revocation sentencing. As the Supreme Court stated in Rita, “[w]here a matter is as

conceptually simple as in the case at hand and the record makes clear that the sentencing

judge considered the evidence and arguments, we do not believe the law requires the

judge to write more extensively.” 551 U.S. at 359 (emphasis added); see also id. at 359–

60 (recognizing that the sentencing court did not address all of the defendant’s

                                           11
arguments); Slappy, 872 F.3d at 210 (requiring the court to “provide enough” to indicate

“that it considered” the defendant’s arguments) (emphasis added).

       Juxtaposing the district court’s responses to Gibbs’s arguments for leniency with

the court’s affirmative statements for why it was imposing the 24-month sentence — the

four incidents that violated the terms of Gibbs’s supervised release, including two

convictions, one for possession of drug paraphernalia and the other for conspiracy to

traffic in heroin, as well as Gibbs’s long criminal history involving “gang affiliation [and]

convictions for assault, marijuana possession, resisting a public officer, possession of

stolen goods, trespass, possession of cocaine, possession of a firearm by a felon,

possession of a handgun by a minor, [and] carrying a concealed weapon” — the court

clearly and properly manifested its reasons for giving the recommended 24-month

sentence.   The court’s comments about Gibbs’s arguments, while not extensive,

nonetheless do enable us to “effectively review the reasonableness of [Gibbs’s] sentence”

with the “assurance” that the court “considered any potentially meritorious arguments

raised by [Gibbs] with regard to [his] sentencing.” Moulden, 478 F.3d at 657 (emphasis

added). If the court had determined to depart from the Guidelines, perhaps a more

fulsome explanation might have been required. See Gall, 552 U.S. at 50. But in this

case, the district court imposed the recommended Guidelines sentence, and the procedure

that the court followed in imposing the revocation sentence was not unreasonable — and

certainly not plainly unreasonable. See Crudup, 461 F.3d at 439; see also Slappy, 872

F.3d at 208 (noting that “[i]f a revocation sentence — even an unreasonable one — is not

‘plainly unreasonable,’ we will affirm it”).

                                               12
       Gibbs argues that our decisions in Thompson and Slappy, where we reviewed and

vacated revocation sentences, support his contention that the district court’s sentence here

was procedurally unreasonable. But we find his reliance on these cases misplaced.

       In Thompson, after recognizing that a “district court commits significant

procedural error where it ‘fail[s] to adequately explain the chosen sentence,’” 595 F.3d at

547 (quoting Gall, 552 U.S. at 51) (alteration in original), we vacated the revocation

sentence, even though it was within the range recommended by the Sentencing

Guidelines, because the sentence was supported by no explanation whatsoever. As we

observed, the district court “simply stated: ‘It’s the judgment of the Court the defendant

be committed to the custody of the Federal Bureau of Prisons for a term of 18 months.’”

Id. at 547. We explained aptly:

       We may be hard-pressed to find any explanation for within-range,
       revocation sentences insufficient given the amount of deference we afford
       district courts when imposing these sentences; but a district court may not
       simply impose sentence without giving any indication of its reasons for
       doing so.

Id. Here, of course, the district court did in fact give its reasons for the sentence imposed,

and it considered and addressed, although briefly, Gibbs’s arguments for a downward

variance.   Contrary to Gibbs’s argument, Thompson thus supports upholding the

revocation sentence of the district court as procedurally reasonable.

       Nor does our decision in Slappy compel a different result. During the revocation

hearing, the defendant asked the district court to impose a term of imprisonment within

the range recommended by the Sentencing Guidelines, which was 7 to 13 months’

imprisonment, advancing several arguments for leniency related to “her post-

                                             13
incarceration conduct and attempts at rehabilitation.” Slappy, 872 F.3d at 205. Instead of

imposing a within-Guidelines sentence, however, the district court imposed an upward-

variance sentence of 36 months’ imprisonment — the statutory maximum — “without

addressing [the defendant’s] arguments.” Id. at 206; see also id. at 208 (noting that the

district court “did not so much as mention her arguments”). In those circumstances, we

vacated the revocation sentence, concluding that “[b]ecause the court failed to address

Slappy’s nonfrivolous arguments in favor of a within-range sentence or to explain why

the statutory maximum sentence was necessary, we find that Slappy’s revocation

sentence [was] procedurally unreasonable.” Id. at 209–10 (emphasis added). Thus, while

the district court in Slappy entered an upward-variance sentence without even

“mention[ing] [the defendant’s] arguments,” id. at 210, the district court here imposed a

within-Guidelines sentence and did address, albeit briefly, Gibbs’s arguments. More

importantly, the record here, taken as a whole, makes clear that the court, as required,

considered those arguments.

      At bottom, we conclude that the district court imposed a procedurally reasonable

revocation sentence, and, because Gibbs does not argue that his sentence was

substantively unreasonable, we affirm. In doing so, we recognize that because Gibbs’s

revocation sentence is not unreasonable, it certainly cannot be plainly so, as would be

required for us to disturb it. See Slappy, 872 F.3d at 208; Crudup, 461 F.3d at 439.

                                                                              AFFIRMED




                                            14
GREGORY, Chief Judge, dissenting:

      The majority ignores established Supreme Court and Fourth Circuit precedent that

requires a sentencing court to address a defendant’s nonfrivolous arguments for a

downward variance in sentencing. *      Disconcertingly, the majority contends that the

“record amply demonstrates” that the district court here addressed Erick Gibbs’s four

nonfrivolous arguments for a downward variance: his extreme family hardship, the time

he had already served, his employability, and the substantial assistance he provided in

murder, bank robbery, and drug investigations. But the majority’s characterization is

blatantly contradicted by the record itself. The district court made no mention of three of

Gibbs’s four arguments, much less explained its reasoning. The majority conveniently

omits that a police detective was present at sentencing to testify about Gibbs’s assistance

in the investigations, and that the district court declined to hear from him without any

explanation or further comment concerning the Government’s mitigating proffer. The

majority further knits from whole cloth an interpretation of the words “all right” and a

brief pause—made after the sentence was imposed—that, in its view, miraculously

addressed not one but three of Gibbs’s arguments. By resting much of its analysis on this


      *
        Gall v. United States, 552 U.S. 38, 51 (2007) (holding that a district court must
“adequately explain the chosen sentence”); United States v. Blue, 877 F.3d 513, 518 (4th
Cir. 2017) (holding that an adequate explanation requires an individualized assessment
that considers the defendant’s nonfrivolous arguments for a downward departure); United
States v. Slappy, 872 F.3d 202, 207–08 (4th Cir. 2017) (same); United States v.
Thompson, 595 F.3d 544, 547–48 (4th Cir. 2010) (same); United States v. Lynn, 592 F.3d
572, 581–82 (4th Cir. 2010) (same); United States v. Carter, 564 F.3d 325, 328–29 (4th
Cir. 2009) (same).


                                            15
pause rather than anything the district court actually said, the majority implicitly

concedes that the court sentenced Gibbs to 24 months’ imprisonment without any

reference to his nonfrivolous mitigating arguments.      Further troubling, the majority

conflates substantive and procedural reasonableness, applying our substantive

reasonableness presumption to Gibbs’s procedural challenge.

      By papering over the district court’s failings, the majority essentially concludes

that Gibbs’s extensive criminal history excused the district court from its clearly

established obligation to say something about Gibbs’s nonfrivolous arguments. This flies

in the face of our caselaw. Tellingly, the majority does not even cite our decision in

United States v. Blue, let alone attempt to distinguish this clear and controlling circuit

precedent. I am compelled to dissent.



                                            I.

      In 2010, Gibbs pled guilty to Possession of Firearm by a Convicted Felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced Gibbs to

36 months in prison, followed by an equivalent period of supervised release. Gibbs

served his prison sentence and began his term of supervised release on June 29, 2012.

      In January 2015, Gibbs’s probation officer filed a Motion for Revocation on

Offender Under Term of Supervised Release on the basis of his use of a controlled

substance (marijuana), as well as two instances of criminal conduct. First, the probation

officer had uncovered the fact that Gibbs had pled guilty to a North Carolina

misdemeanor Possession of Drug Paraphernalia charge in March 2013, for which he was

                                           16
sentenced to 45 days in prison and 18 months of supervised probation. Second, Gibbs

was arrested in January 2015 and charged with felony Conspiracy to Traffic

Opium/Heroin, as well as felony Maintenance of a Vehicle/Dwelling/Place for Controlled

Substance. In October 2015, Gibbs’s probation officer filed an Amended Motion for

Revocation on Offender Under Term of Supervised Release to reflect Gibbs’s guilty plea

to the heroin-selling charge, for which Gibbs was sentenced to 19 to 32 months’

imprisonment.

      At his revocation hearing, Gibbs admitted to violating the terms and conditions of

his supervised release as described above. The parties agreed that it was a Grade A

violation with a statutory maximum sentence of 24 months, as well as a Guidelines range

of 24 months.

      Gibbs made four nonfrivolous arguments in favor of a shorter sentence of 12

months. First, Gibbs argued that he had already served 14 months in state prison for the

offenses underlying the violation of his supervised release. Second, he argued that a

prolonged prison sentence would bring extreme hardship to his family, who attended

Gibbs’s sentencing hearing in a show of support. Because the mother of Gibbs’s three

young children is deceased, Gibbs’s mother had taken a significant reduction in pay to

relocate to Wilmington, North Carolina, to help care for the children. Gibbs argued that

his lengthy imprisonment would thus strain the emotional lives of his children—who

have a “unique bond” with their father—as well as subtract his earnings from the

household.   Third, Gibbs described a work program that he had completed, which

provided him with the skills to “build a house from the ground up,” including framing,

                                          17
painting, and landscaping. Gibbs had also been previously employed by two separate

employers. At the time of the hearing, Gibbs was also pursuing his GED.

      Finally, in addition to his own mitigating arguments, Gibbs adopted the

Government’s statements recounting his cooperation in providing law enforcement with

helpful information regarding criminal activity. The Government explained that “to his

credit,” Gibbs had provided agents with truthful information about a murder, a bank

robbery, and drug activity in the Wilmington area. The Government’s agent-witness was

available to further elaborate on Gibbs’s cooperative behavior, but the court declined to

hear from him.

      At sentencing, the district court reiterated Gibbs’s violations of supervised release

and summarized Gibbs’s criminal background as follows:

      The defendant has a history of gang affiliation and has prior convictions for
      assault, marijuana possession, resisting a public officer, possession of
      stolen goods, trespass, possession of cocaine, possession of a firearm by a
      felon, possession of a handgun by a minor, carrying a concealed weapon,
      and driving while license revoke.

J.A. 29. The court added that Gibbs “has a scant employment record and little in the way

of marketable job skills” and mentioned only in passing Gibbs’s efforts to obtain his

GED. Id. It then revoked Gibbs’s supervised release and sentenced him to a 24-month

term of imprisonment. By way of explanation, the court said only:

      Upon consideration of Chapter 7 of the United States Sentencing
      Guidelines and the relevant factors listed in 18 U.S.C. Section 3553(a),
      the defendant’s term of supervision is revoked, and the defendant is
      ordered to be committed to the custody of the Bureau of Prisons or its
      authorized representative for a period of 24 months.



                                           18
Id.   When Gibbs requested that the court reconsider the 24-month range, the court

replied, “All right,” paused briefly, and then declared, “No change.           Twenty-four

months.” J.A. 30.



                                            II.

       As the majority opinion notes, district courts have broad discretion in the context

of revocation sentencing. United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).

That discretion, however, is not unlimited. United States v. Thompson, 595 F.3d 544,

547 (4th Cir. 2010).     While we assume a more deferential appellate posture when

reviewing revocation sentences, United States v. Moulden, 478 F.3d 652, 658 (4th Cir.

2007), we nonetheless “follow generally the procedural and substantive considerations”

used in reviewing original sentences. United States v. Crudup, 461 F.3d 433, 438–39

(2006).

       This Court will affirm a revocation sentence if it is within the prescribed statutory

range and is not “plainly unreasonable.”          Id. at 439.   To find a sentence plainly

unreasonable, we must first determine whether it is “unreasonable at all.” Thompson, 595

F.3d at 546. The unreasonableness inquiry proceeds in two steps. Gall v. United States,

552 U.S. 38, 51 (2007).       First, we evaluate the sentencing court for procedural

reasonableness. Id. Errors amounting to procedural unreasonableness include “failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Id. Only if no

                                            19
significant procedural errors were committed do we go on to evaluate substantive

reasonableness. Id. Unlike the procedural analysis, the substantive analysis “take[s] into

account the totality of the circumstances” surrounding a defendant’s sentencing. Id.

Here, Gibbs challenges only the procedural reasonableness of his revocation sentence.

      Gibbs’s sentencing was marred by two significant procedural errors. First, the

district court failed to address Gibbs’s nonfrivolous arguments in favor of a downward

variance. Second, the district court failed to adequately explain its imposed sentence. By

affirming the district court’s sentence despite these procedural errors, the majority

opinion fails to follow the binding law of this Circuit and the Supreme Court.

                                            A.

      For a revocation sentence to be procedurally reasonable, a court must respond to

the defendant’s nonfrivolous mitigating arguments. United States v. Lynn, 592 F.3d 572,

585 (4th Cir. 2010); United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017). Both

Supreme Court and Fourth Circuit precedent makes clear that the adequacy of a

sentencing court’s explanation centers on its acknowledgment of the parties’ arguments.

See Rita v. United States, 551 U.S. 338, 339 (2007); Lynn, 592 F.3d at 584. As such, a

sentencing court’s obligation extends to each and every argument the defendant makes.

United States v. Blue, 877 F.3d 513, 516, 519 (4th Cir. 2017) (holding that the district

court failed to adequately address the defendant’s mitigating arguments when it

addressed only two out of eight).

      At Gibbs’s sentencing hearing, Gibbs presented four nonfrivolous arguments to

the district court: (1) the time Gibbs already served for the offenses underlying his

                                            20
release violation, (2) the emotional and financial hardship that a longer sentence would

impose on Gibbs’s family, (3) Gibbs’s good prospects for future employment, and (4) the

assistance Gibbs provided Wilmington-area law enforcement (adopted from the

Government’s statements).

       Unlike the majority, I see no place in the record where the district court

acknowledged Gibbs’s nonfrivolous arguments, much less explained why he rejected

them. Slappy, 872 F.3d at 207; Lynn, 592 F.3d at 585. Even if one were to take the

court’s mention that Gibbs has “little in the way of marketable job skills”—an

observation that appears plainly mistaken in light of the undisputed facts in the record—

as evidence that the court considered Gibbs’s second argument, the court still entirely

overlooked three of Gibbs’s four mitigating arguments. Blue, 877 F.3d at 516, 519. In

announcing its chosen sentence, the court made no mention of Gibbs’s time already

served, his family’s circumstances, or his assistance to the Government.

       The district court’s failure to mention Gibbs’s family is particularly troubling, as

the bulk of Gibbs’s mitigation revolved around his family’s unique circumstances, such

as the fact that the mother of his three small children is deceased. Similarly, the district

court uttered not a single word about Gibbs’s assistance to Wilmington-area law

enforcement with regard to several serious crimes, including a bank robbery and a

murder. The fact that the court declined to hear from the law enforcement agent who

worked with Gibbs—who was present and available to testify at Gibbs’s hearing—

exemplifies the court’s demonstrated lack of engagement with Gibbs’s nonfrivolous

mitigating arguments.

                                            21
       Sympathetic to the natural idiosyncrasies of court proceedings, we have

recognized that acknowledgment of the parties’ arguments may be clear from the context

of the court’s comments. See United States v. Montes-Pineda, 445 F.3d 375, 381 (4th

Cir. 2006). For example, appellate courts “may [] infer that a sentencing court gave

specific attention to a defendant’s argument for a downward departure if the sentencing

court engage[d] counsel in a discussion about that argument.” Blue, 877 F.3d at 521

(citing Gall, 552 U.S. at 54). But the record contains no contextual clues, such as a

conversation with counsel, to suggest that the district court considered Gibbs’s

arguments. During Gibbs’s presentation, the district court asked no questions and made

no comments beyond those required to keep the proceedings moving. Lynn, 592 F.3d at

584. Nor did the court give any indication that it found Gibbs’s arguments persuasive or

unpersuasive. Id.

       With nowhere else to turn, the majority reads heavily into the court’s two-word

response—“all right”—and subsequent pause after being asked by Gibbs’s counsel to

reconsider the 24-month range. The majority takes these two words and the pause to

adequately address not one, but three separate arguments. See Ante at 12. For the

majority, the district court’s “brief pause,” noted on the hearing transcript, signifies that

the court “[gave] the argument[s] thought,” as well as “considered and rejected” Gibbs’s

arguments. Id. This conclusion seems tenuous at best—especially because we have held

that “an appellate court may not guess at the district court’s rationale, searching the

record for statements by the Government or defense counsel or for any other clues that

might explain a sentence.” United States v. Carter, 564 F.3d 325, 329–30 (4th Cir.

                                             22
2009). Moreover, the terse exchange upon which the majority opinion relies occurred

after the district court had already handed down Gibbs’s sentence. This renders the

court’s pause even less satisfying, as the parties’ arguments are meant to help the court

arrive at an appropriate and individualized sentence in the first place. See Lynn, 592 F.3d

at 584–85 (“Indeed, the only time the district court even acknowledged the defendant’s

arguments was after it had imposed sentence; even then, it did so obliquely.”).

       The district court neither directly nor indirectly addressed Gibbs’s nonfrivolous

arguments for a downward variance. This amounts to a significant procedural error,

which renders Gibbs’s sentence procedurally unreasonable.

                                            B.

       The court that sentenced Gibbs also failed to adequately explain the sentence it

chose. A procedurally sound sentence must provide an adequate explanation for the

sentence imposed. Gall, 552 U.S. at 50–51; see also 18 U.S.C. 3553(c) (“The court, at

the time of sentencing, shall state in open court the reasons for its imposition of the

particular sentence[.]”). Sentences that fall within the suggested Guidelines range are no

exception. Montes-Pineda, 445 F.3d at 380. A district court’s explanation “need not be

lengthy, but the court must offer some ‘individualized assessment’ justifying the sentence

imposed.” Lynn, 592 F.3d at 584 (citing Gall, 552 U.S. at 50; Carter, 564 F.3d at 330).

Adequate explanation not only ensures individualized sentences, but also “allow[s] for

meaningful appellate review” and “helps [the sentencing process] evolve.” Gall, 552

U.S. at 50; Rita, 551 U.S. at 357.



                                            23
       An adequate explanation is one that “consider[s] the factors outlined in 18 U.S.C.

§ 3553(a) and ‘articulate[s] the reasons for selecting the particular sentence.’” United

States v. Helton, 782 F.3d 148, 152 (4th Cir. 2015) (quoting United States v. Green, 436

F.3d 449, 456 (4th Cir. 2006)). Although 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,” Thompson, 595 F.3d at 547, it must still “provide a statement of

reasons for the sentence imposed,” Moulden, 479 F.3d at 657.

       Contrary to common sense, the majority opinion suggests that the sentencing

court’s mere recitation of Gibbs’s criminal history is enough to satisfy this standard. See

Ante at 13.   But it is hard to imagine how such a description, absent any express

reasoning, can be fairly called an “explanation.”        See Explanation, Black’s Law

Dictionary (10th ed. 2014) (defining “explanation” as the “activity or process of

expounding, interpreting, or making something intelligible;” especially “the process of

demonstrating by reasoning . . . the causal or logical antecedents or conditions of some

event or thing to be accounted for”). A court’s simple restatement of the matter at

hand—i.e., recounting Gibbs’s violations of his supervised release—is not the same as an

explanation for the sentence imposed.

       The notion that Gibbs’s criminal history constitutes an adequate explanation seems

even more unlikely in the context of the revocation of supervised release. While the

Guidelines “base original sentences primarily on the severity of the defendant’s criminal

conduct and criminal history,” Crudup, 461 F.3d at 437, the Guidelines explain that

revocation sentences “should sanction primarily the defendant’s breach of trust, while

                                            24
taking into account, to a limited degree, the seriousness of the underlying violation and

the criminal history of the violator.” U.S. Sentencing Guidelines Manual, ch. 7, pt. A,

introductory cmt. 3(b) (U.S. Sentencing Comm’n 2016). Thus, even if a recitation of

Gibbs’s criminal past somehow comprises an explanation, it at most explains a tangential,

and not a primary, issue. Moulden, 479 F.3d at 657.

      Regardless of the relevance of Gibbs’s criminal history, § 3553(c) mandates that

the sentencing court “state in open court the reasons for its imposition of the particular

sentence.” 18 U.S.C. § 3553(c). Adequate explanations should demonstrate that the

sentencing judge considered the § 3553(a) factors.       Helton, 782 F.3d at 152.      In

Thompson, we vacated the appellant’s revocation sentence because of the district court’s

failure to adequately explain its reasoning. 595 F.3d at 547. Nonetheless, even the

district court in Thompson managed to note that it “could not find that Thompson ‘was

not a danger to the community.’” 595 F.3d at 549 (Niemeyer, J., dissenting). Similarly,

in Slappy, we held that the sentencing court failed to adequately explain the appellant’s

sentence. 872 F.3d. at 204. However, even the inadequate explanation offered by the

district court there provided more of an explanation than Gibbs received. Echoing the

language of § 3553(a), the district court in Slappy stated, “This sentence is imposed to

afford adequate deterrence to criminal conduct.” Id. at 206. But with Gibbs, the district

court did not offer even an inadequate explanation for why it chose this particular

sentence, let alone the statutory maximum. See, e.g., Slappy, 872 F.3d at 209.




                                           25
       By handing down Gibbs’s sentence with no rationale for the sentence imposed, the

district court did not meet its obligation to adequately explain its chosen sentence. Such a

significant procedural error cannot survive our reasonableness review.

                                      *      *      *

       In sum, our precedent overwhelmingly holds that a sentencing court must both

respond to the nonfrivolous mitigating arguments of the defendant—be it in the form of a

direct response or a demonstrated engagement with counsel—as well as adequately

explain its decision with a statement of reasons for choosing the particular sentence

imposed. The record from Gibbs’s revocation hearing reveals the district court’s failure

to comport with either procedural requirement. By affirming it, the majority opinion flies

in the face of the plain and long-established precedent of both the Fourth Circuit and the

Supreme Court.



                                            III.

       The majority purports to apply our binding precedent, but in reality it undermines

it. In its opinion, the majority claims that revocation sentences falling within the advised

Guidelines range are “presumed reasonable.” Ante at 9 (citing Webb, 738 F.3d at 642).

This misconstrues the law. While within-Guidelines sentences may be presumed to be

substantively reasonable, such a presumption does not apply to the procedural prong of

the reasonableness analysis.    Blue, 877 F.3d at 519–20; see Gall, 522 U.S. at 51

(permitting appellate courts to apply an optional presumption of reasonableness in their

substantive analysis of within-Guidelines sentences).      As we have explained before,

                                            26
applying such a presumption would “effectively eliminate the requirement that

sentencing courts adequately explain all sentences, even those within the Guidelines, and

would be inconsistent with this Court’s precedent.” Blue, 877 F.3d at 520.

       Moreover, a presumption of reasonableness makes little sense in the context of

procedural review. The only reason we may presume that a sentence is substantively

reasonable is because there are procedural safeguards in place at the time of sentencing,

which assure us that the district court made a carefully reasoned and appropriately

individualized decision. Robust procedural requirements—such as those instructing the

sentencing court to fully address the parties’ arguments and adequately explain its chosen

sentence—are precisely what allow for a presumption of substantive reasonableness. To

presume that a within-Guidelines sentence is procedurally sound is to turn the entire

reasonableness analysis on its head.

       Even more troubling is that, in searching for a rationale from the district court, the

majority transposes its own reasoning where the district court’s should be. Ante at 11–13.

Analysis of a sentence’s reasonableness proceeds under an abuse of discretion standard.

Gall, 552 U.S. at 56. Thus, our task, contrary to what the majority opinion implies, is not

to describe what our reasons would have been had we been the ones to sentence Gibbs to

two years in prison. Rather, our responsibility is to determine whether the district court

adequately explained its reasons for sentencing Gibbs, and, by extension, whether Gibbs

was sentenced in a fair manner. The abuse of discretion standard underscores the critical

need for a requirement of clear explanation from the district court. Such a requirement

exists precisely so that we do not risk substituting our own reasoning for that of the

                                             27
sentencing court, which is closer to the facts of the case and thus better able to fashion an

appropriate sentence.

       In light of the law of this Court, the majority opinion cannot justify the district

court’s failure to offer Gibbs an adequate explanation. While insisting that the record

“amply” demonstrates the district court’s consideration, ante at 3, the majority sets the

bar absurdly low by asserting that two words and a brief pause are enough to provide a

satisfactory acknowledgement of a defendant’s arguments for a downward variance.

Such a conclusion renders meaningless the requirement to explain a sentencing

decision—a sentencing decision that, lest we forget, amounts to no less than the

deprivation of the defendant’s liberty.



                                            IV.

       At Gibbs’s sentencing hearing, the district court gave no indication that it had

considered Gibbs’s time already served, nor his family’s hardship, nor his completed

work training, nor his cooperation with the Government’s investigations in the

Wilmington area—the bases of each of Gibbs’s nonfrivolous mitigating arguments. The

court also offered no explanation for imposing the particular sentence it chose.

Nonetheless, the majority believes the district court fulfilled its congressionally mandated

duty to adequately explain its sentence. As such, the majority predicates its decision on

little more than its independent belief that Gibbs received the punishment he deserved.

Such a position is not only an affront to over a decade of clearly established precedent



                                             28
with regard to sentencing procedure, but also a transgression of our role as a reviewing

court.

         I respectfully dissent.




                                          29
