                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4366


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

HOLLIE LYNN CHAIMOWITZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:09-cr-00366-BO-1)


Submitted:   January 15, 2014             Decided:   February 5, 2014


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas   G.  Walker,   United   States   Attorney,   Jennifer   P.
May-Parker,   Kristine   L.   Fritz,   Assistant   United   States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Hollie Lynn Chaimowitz appeals the twenty-four month

sentence      imposed     upon     revocation               of   her   term        of       supervised

release.       On appeal, Chaimowitz challenges the procedural and

substantive reasonableness of her sentence.                                      For the reasons

that   follow,       we   vacate       the    court’s            judgment        and     remand      for

resentencing.

              In    examining      a    sentence            imposed        upon    revocation         of

supervised         release,     this     court          “takes         a        more     deferential

appellate posture concerning issues of fact and the exercise of

discretion         than       reasonableness                 review         for        [G]uidelines

sentences.”         United States v. Moulden, 478 F.3d 652, 656 (4th

Cir.    2007)      (quotation      marks          omitted).                We     will      affirm    a

revocation sentence if it falls within the statutory range and

is not “plainly unreasonable.”                         United States v. Crudup, 461

F.3d 433, 437 (4th Cir. 2006) (quotation marks omitted).                                             We

must first determine whether the sentence is unreasonable, using

the    same     general       analysis       employed            in    review          of    original

sentences.         Id. at 438.         A revocation sentence is procedurally

reasonable if the court has considered the policy statements

contained     in     Chapter     Seven       of       the    Guidelines           Manual      and    the

applicable 18 U.S.C. § 3553(a) (2012) factors, Crudup, 461 F.3d

at 440, and provides an adequate explanation for the sentence it

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

                                                  2
2010).        If     the    sentence           is       procedurally       or    substantively

unreasonable,        we     will    consider            whether     it    is     “plainly”      so.

Crudup, 461 F.3d at 439.

              Chaimowitz           first        argues        that         court      committed

procedural      sentencing         error        by       refusing    to     provide       her    an

opportunity to allocute.                 Because Chaimowitz did not raise this

issue    in    the   district        court,         we    review    it     for    plain    error.

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).

To    establish      plain      error,         Chaimowitz         must     demonstrate          that

(1) the district court erred, (2) the error was plain, and (3)

the error affected her substantial rights.                               Henderson v. United

States, 133 S. Ct. 1121, 1126 (2013).                             A “plain error” is one

that    is    “clear”      or   “obvious”           under    “the    settled       law    of    the

Supreme Court or this circuit.”                         United States v. Carthorne, 726

F.3d 503, 516 (4th Cir. 2013) (quotation marks omitted).                                        Even

if these requirements are met, we will exercise our discretion

to correct the error “only if it would seriously affect the

fairness,       integrity           or     public            reputation          of      judicial

proceedings.”        Id. at 510 (quotation marks omitted).

              A defendant at a supervised revocation proceeding is

entitled to “an opportunity to make a statement and present any

information in mitigation.”                     Fed. R. Crim. P. 32.1(b)(2)(E).

This right to allocution is not satisfied by “[m]erely affording

the    Defendant’s         counsel       the    opportunity         to     speak;”       instead,

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“[t]rial    judges       should       leave       no   room     for     doubt     that     the

defendant has been issued a personal invitation to speak prior

to sentencing.”          United States v. Cole, 27 F.3d 996, 998 (4th

Cir. 1994) (quotation marks omitted).                       “As the Supreme Court has

noted, ‘[t]he most persuasive counsel may not be able to speak

for a defendant as the defendant might, with halting eloquence,

speak for himself.’”            Muhammad, 478 F.3d at 249 (quoting Green

v. United States, 365 U.S. 301, 304 (1961) (plurality opinion)).

            Our review of the record demonstrates no reversible

error on this basis.                 While we are troubled by the court’s

apparent hostility to the efforts of both Chaimowitz and her

counsel    to    raise    pertinent         issues     in    her     defense,    we    cannot

conclude that the court plainly deprived Chaimowitz of her right

to   allocute.           On    several       occasions,        the      court     addressed

Chaimowitz personally and invited her to address her sentence.

Chaimowitz cites several cases to suggest that she was deprived

a meaningful opportunity to allocute on her own behalf, but we

find these cases distinguishable.                      The court did not expressly

limit the topics on which Chaimowitz could speak.                           Nor did the

court’s     comments          have     an     apparent         chilling         effect     on

Chaimowitz’s allocution.              Rather, the record demonstrates that,

despite    the    court’s      interjections           and    commentary,       Chaimowitz

addressed       mitigating      factors       beyond         those     prompted       by   the

court’s questions, and she was provided an opportunity to raise

                                              4
issues she found relevant when speaking personally to the court.

Thus, this claim entitles Chaimowitz to no relief.

              Chaimowitz next argues that the district court plainly

procedurally erred by failing to adequately articulate the basis

for its chosen sentence.              In explaining a sentence, the district

court is not required 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)    (quotation        marks     omitted).           However,          the    court       must

conduct    an      “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)    (quotation          marks    omitted).            Where      the

defendant       or      prosecutor    presents         “nonfrivolous          reasons”         for

imposing a different sentence, “a district judge should address

the   party’s        arguments    and      explain     why     he    has    rejected         those

arguments.”          United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009) (quotation marks omitted).                         The district court must

provide       sufficient          explanation          to      demonstrate             that     it

“considered the parties’ arguments and ha[d] a reasoned basis

for     exercising        [its]      own      legal     decisionmaking             authority.”

Rita v.      United       States,     551      U.S.     338,        356    (2007).            Such

explanation        is    necessary       to   “promote        the    perception         of    fair



                                               5
sentencing”        and     to    permit        “meaningful         appellate        review.”

Gall v. United States, 552 U.S. 38, 50 (2007).

             In imposing a revocation sentence, the court need not

provide as detailed an explanation as that required in imposing

an    original     sentence,       but    it       “must    provide     a    statement   of

reasons for the sentence imposed.”                     Moulden, 478 F.3d at 657.

Although      “[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), Supreme Court precedent precludes

us    from   relying      upon   our     own       assumptions     about      the   court’s

rationale     in    imposing       a     sentence.           “Rather,       ‘the    district

judge,’ not an appellate court, ‘must make an individualized

assessment based on the facts presented’ to him.”                              Carter, 564

F.3d at 329 (quoting Gall, 552 U.S. at 49-50).

             In its brief, the Government provides a detailed post

hoc    explanation         of    the      court’s          sentence,        which   expands

significantly on the court’s statements during the sentencing

hearing and draws conclusions not clearly evident from comments

the court actually made.                 While the court’s statements during

the hearing did provide some context for its decisionmaking, we

conclude these statements were plainly inadequate to demonstrate

its    meaningful        consideration         of    the     nonfrivolous       sentencing

                                               6
arguments raised by Chaimowitz and her counsel.                               When coupled

with       the     court’s        demonstrated       hostility           to     Chaimowitz’s

allocution        and     to   counsel’s       arguments         regarding      a   disputed

violation,        the    record     provides       room    to    question       whether    the

court      actually       considered     the       arguments       Chaimowitz       and    her

counsel presented in mitigation before it imposed the statutory

maximum      term    of     imprisonment.          We     find    the    court’s     limited

statements, made before counsel’s detailed arguments in support

of   leniency,          plainly     insufficient        to      “allow    for    meaningful

appellate         review”      or   to   “promote         the     perception        of    fair

sentencing.”            Gall, 552 U.S. at 50.                Moreover, the Government

does not allege or establish that any such error was harmless. *

                 Accordingly, we vacate the district court’s judgment

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




       *
       Because we agree that Chaimowitz’s sentence was plainly
procedurally unreasonable, we need not address her argument that
the sentence was substantively so. Id. at 51.



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