                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4426


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

LAWRENCE A. JORDAN,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:09-cr-00409-CMH-1)


Submitted: March 31, 2020                                         Decided: April 7, 2020


Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary
Terwilliger, United States Attorney, Jason Trigger, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Lawrence A. Jordan appeals his 18-month sentence imposed upon revocation of his

supervised release. Shortly after beginning a period of supervised release for his original

conviction, Jordan was arrested for, and pled guilty in the District of Columbia Superior

Court to, third degree sexual abuse by force. After serving 22 months for the sexual abuse

offense, the district court revoked his supervised release and sentenced him to 18 months’

imprisonment. On appeal, Jordan argues that his revocation sentence is procedurally

unreasonable because the district court did not adequately explain his sentence and failed

to address his nonfrivolous arguments for a lower sentence. 1

       “We will affirm a revocation sentence if it is within the statutory maximum and is

not plainly unreasonable.” United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017)

(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).              “Only if this modified

reasonableness analysis leads us to conclude that the sentence was unreasonable, do we ask

whether it is plainly so, relying on the definition of plain used in our plain error analysis—

that is, clear or obvious.” United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007)

(alterations and internal quotation marks omitted).

       However, “even if a revocation sentence is plainly unreasonable, we will still affirm

it if we find that any errors are harmless.” Slappy, 872 F.3d at 207. An error is harmless


       1
           Jordan concedes that he violated the terms of his supervised release.

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if the government “demonstrates that the error did not have a substantial and injurious

effect or influence on the result and we can say with fair assurance that the district court’s

explicit consideration of the defendant’s arguments would not have affected the sentence

imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (alterations and

internal quotation marks omitted).

       “A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) [(2018)] factors.”

Slappy, 872 F.3d at 207; see 18 U.S.C. § 3583(e) (2018) (listing relevant factors). “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).

       However, “where a court entirely fails to mention a party’s nonfrivolous arguments

in favor of a particular sentence, or where the court fails to provide at least some reason

why those arguments are unpersuasive, even the relaxed requirements for revocation

sentences are not satisfied.” Slappy, 872 F.3d at 209. While “[t]he context surrounding a

district court’s explanation may imbue it with enough content for us to evaluate both

whether the court considered the § 3553(a) factors and whether it did so properly,” United

States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006), we “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. Ross, 912

F.3d 740, 745 (4th Cir.) (internal quotation marks omitted), cert. denied, 140 S. Ct. 206

                                              3
(2019). Nor can we “assume that a sentencing court truly considered a defendant’s

nonfrivolous arguments or his individual characteristics when the record fails to make it

patently obvious.” United States v. Blue, 877 F.3d 513, 521 (4th Cir. 2017) (internal

quotation marks omitted).

       Here, the district court’s explanation was contained in one sentence: “There’s no

question after being on supervised release a short period of time you did commit another

offense, and of course I’ve got to address that.” (J.A. 40). 2 The Government argues that

because the district court did not depart from Jordan’s policy statement range, we should

presume that the district court “properly considered the pertinent statutory factors.” United

States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998). This argument is unavailing because

it does not address the district court’s failure to consider Jordan’s nonfrivolous arguments.

Further, this is not a case where “a district court’s reasons for imposing a within-range

sentence may be clear from context.” Thompson, 595 F.3d at 547. The district court clearly

gave weight to the short period of time in between Jordan’s release and his commission of

another offense, but the record does not include facts that show why the district court did

not give weight to any of Jordan’s arguments. Accordingly, we conclude that the district

court’s failure to adequately explain the sentence and address Jordan’s arguments makes

the sentence plainly procedurally unreasonable.

       The Government maintains that any error is harmless because the record makes

plain that the district court adopted its primary argument—that Jordan’s commission of a


       2
           “J.A.” refers to the joint appendix filed by the parties in this appeal.

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serious offense shortly after beginning his period of supervised release merited a new

period of imprisonment. The Government also argues that any error is harmless because

Jordan’s arguments in favor of a lower sentence were too weak to overcome Jordan’s

“breach of trust,” noting in opposition to Jordan’s mental health argument that the D.C.

Superior Court eventually found Jordan competent to stand trial.         The Government

compares this case to Boulware, where we found an adequate explanation error harmless

where the record left us “with no doubt” that the district court considered the defendant’s

arguments and that those arguments were “very weak.” 604 F.3d at 839-40.

       As discussed above, the record does not make it plain that the district court adopted

the Government’s argument. The district court did not state that it was adopting, or that it

agreed with, the Government’s argument. Further, in Boulware, the defendant’s argument

“amounted only to her claim that imprisoning her would negatively impact several other

people.” Id. In contrast, Jordan argued that he has already served time for the offense

leading to his revocation sentence, that he has potentially severe mental health problems as

demonstrated by the D.C. Superior Court deeming him incompetent until after he

underwent months-long, in-patient treatment, and that the D.C. Superior Court will be

supervising him until November 2023. Further, although Boulware addressed an original

sentence, the sentencing court there made it much more evident that it had considered the

defendant’s arguments. See id. at 839. The Government is unable to show that the district

court’s failure to explain its sentence and address Jordan’s nonfrivolous arguments did not

have “a substantial and injurious effect” on Jordan’s sentence. Id. at 838.



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      Accordingly, we vacate Jordan’s sentence and remand for resentencing.       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.

                                                        VACATED AND REMANDED




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