                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-4242


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

CARL JAVAN ROSS,

                    Defendant - Appellant.


Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:16-cr-00020-JFM)


Argued: November 1, 2018                                    Decided: January 14, 2019


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


Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Niemeyer and Judge Harris joined.


ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Paul E. Budlow, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda,
Federal Public Defender, Baltimore, Maryland, Joanna Silver, Appellate Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Stephen M. Schenning, Acting United States Attorney, Paul Riley, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
GREGORY, Chief Judge:

      Defendant-Appellant Carl Javan Ross appeals his sentence, which the district

court imposed after Ross was convicted of two counts in violation of 18 U.S.C.

§ 2252(a)(2), and one count in violation of 18 U.S.C. § 2252(a)(4)(b). Ross contends the

district court did not explain why it imposed his term of confinement and did not address

his non-frivolous arguments in favor of a lower sentence. These omissions render his

sentence procedurally unreasonable, according to Ross. In addition, Ross argues the

district court committed procedural error with its imposition of special conditions of

supervised release. We agree, and for the reasons that follow, we vacate Ross’s sentence

and remand for resentencing.



                                           I.

      On December 7, 2016, a jury convicted Ross of two counts of receipt of child

pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(b). The United States Probation

Office filed a Presentence Investigation Report (“PSR”) that included a recommended

term of confinement and recommended special conditions of supervised released. The

PSR calculated Ross’s final offense level as 35 and included various enhancements

reflecting the repugnant nature of the materials in his possession. J.A. 92-93. The PSR

calculated Ross’s Criminal History Category as II given that he had a prior state court




                                           2
conviction for a sexual offense involving a minor. 1 J.A. 94. The Government and Ross

both submitted sentencing memoranda.

       The district court held a sentencing hearing and adopted the PSR’s advisory

Guidelines range: 188 months to 235 months in prison. The district court ordered a term

of confinement of 120 months as to each count, to run concurrently with each other but

consecutive to his state court sentence. J.A. 63. The district court placed Ross on

supervised release for the rest of his life “subject to the special conditions set forth in the

recommended conditions of supervision.”             Id.   Ross timely appealed.     We have

jurisdiction under 28 U.S.C. § 1291.



                                              II.

       At the sentencing hearing, the Government asked the district court to impose a

term of confinement of 120 months to be served consecutive to his 120-months state

court term of confinement instead of Ross’s requested 60-month mandatory minimum

sentence which he wanted to run concurrently to his state court sentence.                 The

Government argued Ross’s request resulted in “essentially no sentence” and “absolutely

zero impact, zero additional punishment as a result of the conduct in this case.” J.A. 17.

According to the Government, the gravity of Ross’s conduct justified a longer and non-

concurrent sentence and his state court conviction constituted evidence of Ross’s threat to

the public. The Government highlighted that Ross deleted much of the illegal material he

       1
        While awaiting trial in his federal case, Ross received a state court term of
confinement of 240 months, with 120 months suspended. J.A. 93.

                                              3
possessed in order to avoid detection, still denied participating in the conduct that gave

rise to his state court conviction and generally lacked remorse for his actions.

       Counsel for Ross replied that the Government’s sentencing position essentially

amounted to an above-Guidelines sentence because it would result in two separate 120-

month terms of confinement that run consecutively. Counsel argued the district court

should consider his state court term of confinement when calculating his sentence. In

addition, Ross’s counsel argued that felony convictions relating to sexual offenses are

already very punitive and that the lifelong social stigma Ross faces justified his request

for a 60-month concurrent sentence. Ross’s counsel defended his requested sentence

given the stringent demands of supervised release he will face and the likelihood of his

recidivism if he violates his terms.

       Additionally, Ross’s counsel further explained while Ross did not appear

remorseful, his demeanor reflected his mental health challenges and not a lack of

remorse.   Counsel presented Ross’s psychological forensic report, which explained

Ross’s diagnosis of schizoid personality disorder, adjustment disorder, and an unspecified

neurodevelopmental disorder.       These conditions should have been considered in

mitigation, according to Ross’s counsel. For instance, counsel asserted Ross’s mental

disorder caused Ross to insist on going to trial in his state court case against the advice of

his lawyer. Ross’s counsel further indicated that Ross’s mental health issues similarly

caused him to elect to go to trial instead of pleading guilty in his federal case as well,

leading to increased exposure to criminal penalties. Ross’s counsel argued that Ross

maintained gainful employment, cared for his aging mother and had only a relatively

                                              4
small amount of illicit material compared to the average child pornography offender.

According to Ross’s counsel, the district court should have considered all of these factors

when calculating Ross’s term of confinement.

      Upon hearing arguments from both the Government and Ross, the district court

imposed a sentence of 120 months to be served consecutive to his state court term of

confinement. The district court explained that it found Ross’s arguments unpersuasive

and stated that “the Government’s recommendation is appropriate and that’s my sentence

and the reason for it.” J.A. 63. After the district court pronounced Ross’s sentence, the

Government requested the court to explain its basis for the sentence under the 18 U.S.C.

§ 3553(a) factors. J.A. 63-64. The district court provided the following explanation:

      Well, I mean, it’s obviously [sic] the offense is a serious one. In terms of
      specific deterrence, I am concerned about the lack of remorse while even if
      there was remorse, there is a body of statistical evidence that—well, I’m
      not going to say that, but that I believe it’s a specific deterrence, requires
      the sentence I’m imposing. I did not find that the guidelines are so flawed
      as to essentially have no sentence at all. And in terms of general
      deterrence, I think that the sentence I’m imposing is required.

J.A. 64. In addition, the district court imposed a lifetime of supervised release. The

special conditions of his supervised release prohibit Ross from using “computer systems,

Internet-capable devices and/or similar electronic devices at any location (including

employment or educational program) without the prior written approval” of the probation

officer, and from owning, using, possessing, viewing, or reading any pornographic

materials, as defined in 18 U.S.C. § 2256(2). J.A. 79.




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                                           III.

      Under the standard set forth in Gall v. United States, a sentence is reviewed for

both procedural and substantive reasonableness. 552 U.S. 38, 51 (2007). In the instant

case, procedural reasonableness is at issue. In determining procedural reasonableness,

this Court considers whether the district court properly calculated the defendant’s

advisory guidelines range, gave the parties an opportunity to argue for an appropriate

sentence, considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the

selected sentence. Id. at 49-51. We do not require the district court to “robotically tick

through § 3553(a)’s every subsection, particularly when imposing a within-Guidelines

sentence.” United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011) (internal citation

and quotation marks omitted).      Nevertheless, the district court must provide some

individualized assessment “justifying the sentence imposed and rejection of arguments

for a higher or lower sentence based on § 3553.” United States v. Lynn, 592 F.3d 572,

584 (4th Cir. 2010). We will first turn to the procedural unreasonableness of Ross’s term

of confinement and then to similar deficiencies pertaining to Ross’s special conditions of

supervised release.



                                           IV.

      Ross challenged his term of confinement at his sentencing hearing and therefore

this Court reviews the reasonableness of the term under “a deferential abuse-of-discretion

standard.” United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014). Under the law of this

circuit a district court must address or consider all non-frivolous reasons presented for

                                            6
imposing a different sentence and explain why he has rejected those arguments. United

States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017); Slappy, 872 F.3d 202, 207 (4th Cir.

2017) (internal citation and quotation marks omitted). Here, the district court did not

follow circuit precedent during Ross’s sentencing proceedings when determining his term

of confinement.    Indeed, the district court did not address or consider any of the

numerous non-frivolous arguments advanced by Ross’s counsel requesting a lower and

concurrent sentence.    This Court has previously held that “[t]he adequacy of the

sentencing court’s explanation depends on the complexity of each case. There is no

mechanical approach to our sentencing review. The appropriateness of brevity or length,

consciousness or detail, when to write, what to say, depends upon the circumstances.”

Blue, 877 F.3d at 518 (internal quotation marks and citations omitted). Here, it is

undisputable that the sentencing court provided an insufficient explanation of its sentence

and did not provide an “individualized assessment” of important mitigation evidence. Id.

An individualized assessment requires “that district courts consider the defendant’s

nonfrivolous arguments for a downward departure, impose an individualized sentence

based on the characteristics of the defendant and the facts of the case, and explain the

sentence chosen.” Id.

       As an initial matter, the district court did not provide an individualized assessment

regarding important mitigation evidence related to Ross’s mental health. The district

court noted that Ross lacked remorse but did not address his counsel’s arguments that his

mental health issues, such as schizoid personality disorder, adjustment disorder, and an

unspecified neurodevelopmental disorder, caused him to appear to lack remorse.

                                             7
Moreover, the district court did not address counsel’s arguments about how Ross’s

mental health issues caused him to pursue litigation strategies that were contrary to his

own interest and consequently raised his sentencing exposure. Finally, the district court

did not address Ross’s history of gainful employment, his role as a caretaker for his aging

mother, and the relatively small amount of illicit material found in his computer as

mitigating factors when calculating his term of confinement.

       The district court’s post-sentencing commentary is non-responsive to Ross’s

arguments and violates the legal standards for procedural reasonableness. The Supreme

Court makes clear that the district court must sufficiently address the parties’ arguments

and provide an explanation for its sentence for this Court to engage in “meaningful

appellate review.” Gall, 552 U.S. at 50. Although we have held that it is sometimes

possible to discern a sentencing court’s rationale from the context surrounding its

decision, United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006), an appellate

court nonetheless “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. 2009). The

comments made by the district court require this Court to impermissibly speculate as to

the reason for the district court’s sentencing decision.

       Contrary to the Government’s position, it is not harmless error that the district

court did not explain its justification for Ross’s term of confinement. “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.”      Lynn, 592 F.3d at 585

                                              8
(internal citation and quotation marks omitted). This Court cannot look at the district

court’s comments and determine that the explicit consideration of Ross’s various

mitigating arguments would not have affected the ultimate term of confinement imposed.

For instance, the district court mentioned that Ross lacked remorse when discussing its

rationale for Ross’s term of confinement. But the record contains significant evidence of

Ross’s mental health challenges as they affect his ability to show remorse. Given this

record evidence, Ross’s demeanor arguably reflects mental health disorders and not a

callousness or denial of responsibility. The district court could have conceivably given

Ross a different sentence if it had considered his non-frivolous mitigation arguments.

The district court had an obligation to specifically address Ross’s non-frivolous

arguments. It did not do so here. As noted at oral argument, even the Government

noticed that the district court did not provide a sufficient explanation and asked for

clarification.   Nonetheless, the district court cannot meet its responsibility through

broadly referring to the § 3553(a) factors in lieu of addressing the parties’ non-frivolous

arguments.



                                                V.

       The requirement that the district court adequately explain Ross’s term of

confinement similarly applies to the special conditions of his supervised release. United

States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009). Ross did not challenge the special

conditions of supervised release before the district court and concedes that this Court



                                            9
should apply a plain-error standard of review. 2 United States v. Wesley, 81 F.3d 482, 484

(4th Cir. 1996) (explaining that we reverse on plain error if the district court erred, the

error was plain, and the error affected the defendant’s substantial rights). Plain errors

exist “if the settled law of the Supreme Court or this circuit establishes that an error has

occurred.” United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014).

       In imposing the conditions of supervised release, the district court at the

sentencing hearing said, “I will place you on supervised release for life subject to the

general conditions and special conditions set forth in the recommended conditions of

supervision.” J.A. 63. The district court did not explain why Ross was given any of the

special conditions for life. This lack of explanation contravenes the law of this circuit

and constitutes plain error. Armel, 585 F.3d at 186. This error is not harmless. It is the

settled law of this circuit that Ross has a right to know why he faces special conditions

that will forever modify the course of his life, and the district court’s silence violated his

rights. Id. This Court cannot look at the district court’s comments and ascertain its

rationale for imposing very restrictive special conditions for the duration of Ross’s life.




       2
          The parties briefed the special conditions of supervised release argument only
under the plain-error standard. Recent circuit precedent suggests, however, that the abuse
of discretion standard should now apply because Ross challenged the term of
confinement and thus preserved his challenge to the special conditions imposed as part of
his supervised release. United States v. Ketter, 908 F.3d 61, 66 (4th Cir. 2018) (adopting
a unitary approach to sentencing under which the term of confinement and term of
supervised release constitute the same sentence for purposes of appellate review). Ross is
entitled to relief under either standard.


                                             10
It is procedurally unreasonable to impose special conditions for the remainder of Ross’s

life without providing an explanation or rationale for their justification. 3




                                              VI.

       In conclusion, given that the district court failed to address Ross’s non-frivolous

mitigation arguments and to properly explain its rationale for his term of confinement and

his special conditions, we vacate his sentence and remand so that the district court may

provide a sufficient explanation for the significant deprivation of liberty Ross faces as a

result of his criminal conduct. This Court makes no assessment regarding the fairness or

propriety of Ross’s term of confinement or special conditions of supervised release.



                                                               VACATED AND REMANDED




       3
         Given that this Court is vacating Ross’s sentence regarding both the term of
confinement and special conditions of supervised release, this Court need not address
Ross’s remaining arguments regarding the propriety of his special conditions.

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