                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4699


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES DONOVAN FORD,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Graham C. Mullen,
Senior District Judge. (3:00-cr-00061-GCM-1)


Submitted:   May 24, 2010                 Decided:   June 24, 2010


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ross H. Richardson,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Edward R. Ryan, United States
Attorney, Mark A. Jones, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     James    Donovan    Ford     appeals    from   the   twenty-four    month

sentence   imposed    following     the     revocation    of   his   supervised

release.       Finding     Ford’s      sentence      procedurally       plainly

unreasonable, we vacate and remand for resentencing.

     The following colloquy occurred at sentencing immediately

after the court found by a preponderance of the evidence that

Ford had violated his supervised release:

     THE COURT: Revocation table provides for a guideline
     of 33 to 41 months.     However, the guideline range
     exceeds the statutory authorized term and becomes 24
     months’ incarceration.    And that’s what the court
     orders.


     MS. MARROQUIN [Defense counsel]: Your Honor, with all
     due respect, we would just like to make some
     additional argument as to sentencing if this court
     would allow it.


     THE COURT: I don’t think so.   I think he’s got 33 to
     41 months under the guideline.   Twenty-four months is
     all, that’s authorized.    Under the circumstances I
     think that’s pretty light.


     MS. MARROQUIN: Your Honor, just for purposes of the
     record, we would just object that we believe that the
     sentence    was   procedurally    and   substantively
     unreasonable. Thank you.


     THE COURT:      Very well.


     MS. ESCARAVAGE [Assistant United States Attorney]:
     Your Honor, I do think the defendant does have a right
     to allocute.    If we could just have that on the
     record.

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     THE COURT: If he wants anything to say, he may say so.

     Ford     then    addressed     the       court,   stating   that   he    had

continually     worked    since    being       released   from   prison.       He

asserted that he had already spent time in a halfway house for

his cocaine and marijuana use and that the remaining violations

were based on lies that he had not been permitted to rebut.                   The

court then stated, “Okay.         I see no reason to change what I have

announced as the proposed sentence of 24 months’ incarceration

and revocation.”

     We review a sentence imposed as a result of a supervised

release violation to determine whether the sentence is plainly

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

Cir. 2006).     The first step in this analysis is a determination

of whether the sentence is unreasonable.                  Id. at 438.        This

court,   in   determining       reasonableness,        follows   generally    the

procedural and substantive considerations employed in reviewing

original sentences.       Id.     However, “[t]his initial inquiry takes

a more ‘deferential appellate posture concerning issues of fact

and the exercise of discretion’ than reasonableness review for

guidelines sentences.”          United States v. Moulden, 478 F.3d 652,

656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 438).                       If a

sentence imposed after a revocation is not unreasonable, this

court will not proceed to the second prong of the analysis --




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whether the sentence was plainly unreasonable.                                Crudup, 461 F.3d

at 439.

     When imposing a sentence, a district court must conduct an

“individualized assessment” of the particular facts of the case,

whether the court imposes a sentence above, below, or within the

guidelines range.           United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009).            While “[t]his individualized assessment need

not be elaborate or lengthy, . . . it must provide a rationale

tailored to the particular case at hand and adequate to permit

meaningful appellate review.”                  Id. (internal quotation marks and

citation     omitted).             In        addition,          “[w]here       [the        parties]

present[]    nonfrivolous          reasons          for    imposing       a    . . .       sentence

[outside the advisory guidelines range,] . . . a district judge

should    address     the    party’s          arguments         and     explain      why       he   has

rejected those arguments.”                   Id. at 328 (internal quotation marks

and citation omitted).              An appellate court may not guess at a

district court’s sentencing rationale.                           Id. at 329-30; see also

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

(applying Carter to revocation hearings, but noting that “[a]

court    need   not    be    as    detailed          or        specific    when      imposing        a

revocation      sentence      as        it    must        be     when     imposing         a    post-

conviction sentence . . . .”).

     Here,      the   court    did       not    permit          Ford’s    counsel      to       speak

regarding    an   appropriate           sentence,          even       after    she    lodged         an

                                                4
objection.            Further,      although        the   court      permitted         Ford   to

allocute,        it     did   not          address    the     arguments          he     raised,

specifically his work history and his prior punishment for some

of the charged violations.                  Moreover, the court did not provide

an   explanation        for   its     sentence,       aside       from    stating      that   it

calculated the Guidelines range and found it lenient.                                   Because

the district court has provided no basis on which to review its

reasoning on appeal and because the court failed to even permit

counsel     to    be     heard,       we    conclude      that      Ford’s       sentence     is

procedurally unreasonable.                  See United States v. Gutierrez, 555

F.3d 105, 110 (2d Cir.) (recognizing that defendants have the

“right    to     have    an   attorney        address       the    sentencing         court   on

[their] behalf”), cert. denied, 129 S. Ct. 2024 (2009).

      Having found the sentence unreasonable, we now proceed to

determine whether the sentence is plainly unreasonable.                                  To be

plainly   unreasonable,           a    sentence       must    “run       afoul    of    clearly

settled law.”          Thompson, 595 F.3d at 548.                  In Thompson, we noted

that “the district court’s obligation to provide some basis for

appellate review when imposing a revocation sentence . . . has

been settled since at least [2007].”                         Id.     Thus, we held that

“the district court’s failure to provide any reasons for its

sentence contravened clear circuit precedent and was, therefore,

plainly unreasonable.”                Id.     Applying Thompson’s reasoning, we

conclude that Ford’s sentence is plainly unreasonable.

                                                5
     Accordingly,      we    vacate   Ford’s       sentence     and    remand   for

resentencing.    We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the   court   and    argument     would    not   aid    the    decisional

process.

                                                          VACATED AND REMANDED




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