                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-4817


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

THEODUS WILLIAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:96-cr-00109-BO-2)


Argued:   September 24, 2010             Decided:   November 12, 2010


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.    Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Assistant
United States Attorney,   OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        Theodus Williams appeals a twenty-four month sentence for

violating the terms of his supervised release.                                Williams argues

that his sentence is plainly unreasonable and that the district

court    erred       when,     rather        than   relying       on    18     U.S.C.        § 3553

factors,       it    made     an    unfounded       statement          about    who     Williams

likely       associated       with      in    the   past.        For     the    reasons        that

follow, we must affirm Williams’ sentence.

       In     1996,       Williams      was    convicted         of    being     a     felon     in

possession of a firearm under 18 U.S.C. § 922(g) and aiding and

abetting.          He was sentenced to a 120 month prison term followed

by thirty-six months of supervised release.                                  On February 22,

2008, Williams was released from prison and began his supervised

release.           More     than    a   year    later,      on    March        13,    2009,    the

district       court       continued         Williams     on      supervision          after     he

received traffic violations for driving with a revoked license

and having tinted windows.

       On June 9, 2009, Williams tested positive for cocaine use

and   admitted        that    he     had     used   the   drug        three    days     earlier.

Based on this test and his earlier traffic violations, Williams’

probation           officer         petitioned        the        district            court      for

modifications to the terms of his supervision.                               Nine days later,

on    June    18,     the    court      granted     the     petition.           Williams        was

ordered       to    spend     two    days     in    prison       and    to     enroll    in    the


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Surprise    Urinalysis        Program    for     an    additional      ninety    days.

Williams was also ordered to participate in the Drug Reduction

on Probation and Supervised Release (“DROPS”) program.                            Once

enrolled    in   the       DROPS    program,    an    individual      on    supervised

release can be incrementally imprisoned, beginning with two days

after the first positive test for drug use, five days after the

second use, ten days after the third use, and so on.                        Under the

terms of the DROPS program, the total term of imprisonment for

drug use cannot exceed thirty days.                  Williams began at the first

level of use.

     Less    than      a    month    later,     on    July    9,    2009,    Williams’

probation   officer         petitioned    the    court       to    revoke   supervised

release.    In addition to the infractions contained in the June

18 petition, this second petition listed three new violations:

(1) criminal conduct, for Williams’ felony charge of possession

of cocaine then before the North Carolina, Vance County District

Court; (2) possessing a controlled substance; and (3) using a

controlled substance because, on July 2, Williams admitted to

his probation officer that he had used cocaine several times in

the last month.        All three violations stemmed from a single June

19, 2009 incident where Williams was arrested by local police

for possessing a vial containing cocaine residue.                       The district

court issued a warrant for Williams’ arrest.




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     At      the    July    29,     2009,      revocation          hearing       before     the

district court, Williams admitted to violations (2) and (3), and

did not contest violation (1).                 Williams also apologized for his

conduct,      and     stated      that      he      was        ready    for      “[w]hatever

consequence I’ve got to face, I’m ready to own up to it.”                                   The

government     then     informed     the     court        of     Williams’       “really    bad

record,”      involving     drugs     and      the    shooting         of   at    least     two

people.      After informing the court of the statutory guidelines

range, twenty-one to twenty-four months, the government asked

for the maximum.           The court then asked defense counsel if there

was “Anything else?”              Defense counsel responded that Williams

had been arrested with only a small canister holding cocaine

residue      for    personal   use,      had       been    working,     was      thirty-nine

years old, and was living in Henderson.

     The      court    interrupted       defense          counsel      to     observe      that

Williams was “born and raised in Henderson, and he has a record

. . .   in    Henderson      that    goes      back       over    twenty      years.”       The

hearing then continued:

     The Court: [Y]ou’ve been around here with me over the
     past couple of decades and you’ve got the crowds from
     the ‘80s and the ‘90s and the 2000s, all from
     Henderson.   I mean, he probably hung out with the
     Lance Morrison crowd and the old – Hickmans and all
     those people.    I mean, but he’s spent ten years in
     jail so he missed some of it. But, I mean, you’re 39,
     you’re going to be 40 years old.

     Defendant:        Yeah, I just turned 39 yesterday, sir.




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      The Court:   Yeah.   Okay.             You’re 39.       Anyway, I’ll
      give him the 24 months.

The court then entered a judgment against Williams, but said

nothing further about the sentence.

      The   court’s     statements       about    Williams’        possible         past

associations     with     Lance    Morrison       and      the     “Hickmans”        in

Henderson, North Carolina were groundless.                 The comments did not

appear to be based on any facts in the record or any evidence

presented by the parties.         Nor were they relevant to the court’s

obligations    under    18   U.S.C.     § 3583(e),      which    required       it   to

assess   Williams’      revocation    sentence     using     the      section       3553

factors.

      Nonetheless, neither Williams nor his counsel requested a

sentence within the guidelines range, sought a sentence that

departed from the guidelines range, or even mentioned his court-

ordered enrollment in the DROPS program.

      “[R]evocation      sentences    should      be    reviewed      to    determine

whether they are ‘plainly unreasonable’ with regard to those

§ 3553(a)   factors     applicable      to    supervised    release        revocation

sentences.”      United States v. Crudup, 461 F.3d 433, 437 (4th

Cir. 2006).      However, where, as here, the defendant fails to

reserve an objection to a sentence by “sufficiently alert[ing]

the   district    court      of   its        responsibility      to        render    an

individualized explanation” pursuant to the § 3553 factors, we




                                         5
apply the more rigorous plain error standard of review.                                  United

States v. Lynn, 592 F.3d 572, 577-80 (4th Cir. 2010).

       The plain error standard of review is a demanding one.                                 The

defendant must identify an error, demonstrate that the error was

plain, and show that it affected his substantial rights.                                 United

States v. Olano, 507 U.S. 725, 732 (1993).                       And, even when we do

detect     a    plain     error,       we     must    refrain     from      reversing         the

district court unless the error will “seriously affect[] the

fairness,         integrity        or        public       reputation        of         judicial

proceedings.”          Id. (citations omitted).

       It is clear that the district court committed an error in

failing    to     consider       the        section    3553     factors.          While       the

district       court     has   broad        discretion     to    impose      a    particular

sentence, “[a] district court commits a significant procedural

error     where     it    ‘fail[s]          to    adequately     explain         the    chosen

sentence.’”        United States v. Thompson, 595 F.3d 544, 547 (4th

Cir.    2010)     (quoting      Gall    v.       United   States,     552    U.S.       38,    51

(2007)).       “This requirement applies ‘[r]egardless of whether the

district       court     imposes   an       above,    below,     or   within-Guidelines

sentence.’”        Id. (quoting United States v. Carter, 564 F.3d 325,

330 (4th Cir. 2009)).            Though “[a] court need not be as detailed

or specific when imposing a revocation sentence,” Thompson, 595

F.3d at 547, here, the district court provided no valid basis

for its sentence.              Instead, it simply came to the conclusion,


                                                 6
without any evidence, that Williams “probably hung out with”

particular    people      over     the   years.         The   court’s       speculative

comments    fall    far    short    of   its      obligations       under      18   U.S.C.

§ 3583(e), which required the court to make an individualized

assessment of Williams using the section 3553 factors before

revoking his supervised release.

     The    error    was    also     “plain”       in   so    far   as    it    violated

established law.       “An error is plain ‘where the law at the time

of trial was settled and clearly contrary to the law at the time

of appeal.’”        United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005) (quoting Johnson v. United States, 520 U.S. 461, 468

(1997)).

     It is indeed true that the law as it relates to
     federal sentencing is in a state of flux . . . .    We
     are   certain,  though,   that  the  district  court’s
     obligation to provide some basis for appellate review
     when imposing a revocation sentence, however minimal
     that basis may be, has been settled in this Circuit
     since at least United States v. Moulden, 478 F.3d 652,
     657 (4th Cir. 2007).    Given how clearly settled this
     requirement is, even as it applies to revocation
     sentences, the district court’s failure to provide any
     reasons for its sentence contravened clear circuit
     precedent . . . .

Thompson,    595    F.3d    at     547-48       (noting   that      the   analysis      of

“plain” in “plain error” is the same as that of “plainly” in

“plainly unreasonable”).            Thus, the district court had adequate

notice that this form of cursory sentencing was improper.




                                            7
      Finally,       having     established            that     the        district       court

committed    an    error   and      that     it    was       plain,    this    Court       must

determine     whether         the      error       also        implicated           Williams’

“substantial rights.”          Olano, 507 U.S. at 732.                 An error affects

substantial rights if it was prejudicial or affected the outcome

of a case.        Hughes, 401 F.3d at 548.                The burden to prove that

the error was prejudicial falls on the defendant, Williams.                                Id.

      Williams alleges that the dubious comments of the district

court were prejudicial.             Yet, at the revocation hearing, neither

Williams     nor     his      counsel      made        any     arguments        about       the

sufficiency of the court’s findings or requested an alternative

sentence.      The    court     provided         Williams      and    his    counsel       with

opportunities to speak prior to the imposition of the sentence.

In response, Williams stated his intention to accept “[w]hatever

consequence    I’ve    got     to    face,       I’m    ready    to    own     up    to    it.”

Defense     counsel    also      did    not       request       a     within        or    below

guidelines sentence or even mention the section 3553 factors.

Worse, counsel utterly failed to refer to Williams’ involvement

in   the   DROPS     program.          Under      the    terms        of    that     program,

Williams’ second drug use violation would have led to only five

days in prison, rather than twenty-four months.                            Thereafter, the

court sentenced Williams to twenty-four months of imprisonment,

a within guidelines sentence and the only sentence proposed by

either side at the hearing.             See United States v. Montes-Pineda,


                                             8
445   F.3d   375,   379   (4th   Cir.     2006)   (“[A]   sentence    within   a

properly calculated advisory Guidelines range is presumptively

reasonable.”).      At the end of the hearing, following both the

court’s unfounded statements and the sentencing, defense counsel

again failed to raise an objection.               Counsel merely closed by

thanking the court.

      The    unsubstantiated     comments    of   the    district   court   were

unfortunate      and      make     this      case       somewhat     troubling.

Nevertheless, in light of Williams’ own seeming willingness to

accept any sentence, defense counsel’s failure to ask for an

alternative sentence, the government’s unrebutted discussion of

Williams’ violent criminal history and the court having provided

Williams with a within guidelines sentence, it would be far too

speculative for us to find that the district court’s comments

prejudicially affected Williams’ sentencing.               See Lynn, 592 F.3d

at 580.

      Although we do find that the district court plainly erred,

Williams’ inability to show that the court’s error affected his

substantial rights is fatal to his appeal.              Therefore, we must



                                                                        AFFIRM.




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