                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4762


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ONREY TOWNES,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00213-F-4)


Argued:   October 29, 2015                 Decided:   November 16, 2015


Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.           Judge
Niemeyer wrote a dissenting opinion.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.    Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        Onrey    Townes     appeals     the        twenty-one-month         sentence    the

district court imposed upon the revocation of his supervised

release.         Townes      challenges           the    sentence      as   procedurally

unreasonable, arguing that the district court committed plain

error in imposing the sentence absent appropriate explanation.

For the reasons that follow, we vacate the judgment and remand

for resentencing.

                                              I.

        Townes    first     appeared         before       the    district      court    for

sentencing       on   April      24,        2012,       after    pleading      guilty    to

possessing a stolen firearm and aiding and abetting in violation

of 18 U.S.C. §§ 2, 922(j), 924.                    In accordance with the terms of

his   plea      agreement,      the    district         court    sentenced     Townes    to

twelve     months     and    one      day     in    prison       and   three    years    of

supervised release.          Townes began his term of supervised release

on July 3, 2012.

      On March 26, 2014, United States Probation Officer Dewayne

Smith    petitioned       for    the    revocation          of    Townes’s     supervised

release, asserting that Townes had violated the terms of his

supervised release in two respects.                       First, Smith alleged that

Townes had engaged in recent criminal conduct.                          Smith explained

that, during the early morning hours of March 15, 2014, Townes

entered a home through a bathroom window, woke a young female

                                              3
resident, and fled when the girl called for her parents.                             Smith

also noted that Townes attempted to gain access to a second

residence      minutes    later       and    that      Townes     only     abandoned    his

efforts when one of the people inside the home discovered him.

In   response     to     these    incidents,            the   Wilson       County   Police

Department charged Townes with felony first degree burglary and

attempted breaking and entering.                       Second, Smith reported that

Townes   had    violated    the       terms       of    his   supervised      release    by

missing three mental health appointments.

     The    district      court       held    a    hearing      on   the    petition    for

revocation on September 29, 2014.                       During the hearing, Townes

neither admitted nor denied the alleged criminal activity.                               As

to the allegations regarding his failure to participate in a

mental   health    program       as    directed,         Townes      conceded   that    his

absences violated the terms of his supervised release.                              Townes

emphasized, however, that his absences were not the result of

disinterest in mental health support.                         Townes explained that

each absence was due to incomplete information or scheduling

conflicts and emphasized his desire for future mental health

counseling.

     The Government made a proffer as to the purported criminal

activity, eliciting testimony from the police officers who had

responded to the incidents.                  After hearing from both officers,

the district court declared that it found as a matter of fact

                                              4
that Townes had violated the terms of his supervised release by

engaging       in     criminal      conduct—both           burglary      and    attempted

breaking and entering—and by failing to participate in a mental

health program as directed.                 The district court then explained

that   it     had    “considered      the    policy       statements       on   revocation

contained in Chapter Seven of the Sentencing Guidelines as well

as    [the]    relevant      factors       listed    in     18    United    States    Code

3553(a).”           J.A.    21.     Prior     to    imposing       the   sentence,     the

district court afforded both parties an opportunity to address

the court.

       Townes’s attorney argued first and offered the following

factors in mitigation of Townes’s conduct: (1) Townes’s youth;

(2)    his     documented          struggles       with     bipolar        disorder    and

schizophrenia;         (3)    his    recent       engagement       and   commitment    to

helping raise his two three-month-old sons; (4) his abstention

from drug use; (5) his work history and current job prospects;

and    (6)    his    plans    to    earn    his     GED    and    commercial     driver’s

license.      Defense counsel concluded by asking the district court

for a sentence below the advisory range provided under the U.S.

Sentencing      Guidelines          Manual’s       policy        table   applicable     to

revocations.          The    district      court     did    not    explicitly     address

Townes’s arguments in favor of a below-the-guidelines sentence

at that time.         Instead, prior to seeking final comments from the

Government, the district court explained that Townes’s conduct

                                              5
constituted     a     “most    serious     violation”      and   explained       that,

because      Townes    fell     within     criminal      history      category    II,

Townes’s advisory range of imprisonment was fifteen to twenty-

one months.

       The Government responded to Townes’s request for a sentence

below the advisory range by arguing in support of an above-

guidelines     twenty-four-month         sentence—the      applicable      statutory

maximum.      As grounds for a sentence above the advisory range,

the Government explained that, immediately after posting bond in

Wilson     County,    Townes     had     returned   to     one   of     the    subject

residences and shouted threats at the victims.                      The Government

also emphasized that Townes’s initial federal conviction was for

the possession of a stolen firearm and that Townes had come into

possession of the firearm following a 2010 residential break-in.

In sum, the Government argued that Townes had failed to learn

from   his    initial    term    of    imprisonment      and     that    his    recent

criminal conduct evidenced dangerous and escalating behavior.

       After both parties presented their arguments, the district

court reasserted its finding that Townes had violated the terms

of   his   supervised    release.         The   district    court       then   revoked

Townes’s supervised release and imposed the sentence as follows:

       After weighing all the factors, it’s ordered and
       adjudged that the supervision term heretofore granted
       be revoked. The Defendant is ordered committed to the
       custody of the Bureau of Prisons or its authorized
       representative for a period of 21 months.   The court

                                           6
     recommends that while incarcerated he receive mental
     health treatment and he participate in the intensive
     drug treatment program.

J.A. 24-25. This timely appeal followed.

                                          II.

                                           A.

     A district court is afforded broad discretion when imposing

a sentence upon the revocation of supervised release.                          United

States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).                     A revocation

sentence will be affirmed so long as “it is within the statutory

maximum and is not ‘plainly unreasonable.’”                     Id. (quoting United

States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006)).

     To    determine       if   a    sentence    is    plainly    unreasonable,    we

conduct a two-step inquiry.                See Crudup, 461 F.3d at 438-39.

First,     this    Court     must      determine      whether    the   sentence    is

“unreasonable at all.”              United States v. Thompson, 595 F.3d 544,

546 (4th Cir. 2010).            A sentence can be either procedurally or

substantively unreasonable.              Webb, 738 F.3d at 640.            A sentence

will be deemed procedurally unreasonable if the judge failed to

consider the Chapter Seven policy statements or pertinent 18

U.S.C. § 3553(a) sentencing factors or if the judge failed to

“provide    a     statement     of     reasons   for    the     sentence    imposed.”

Thompson, 595 F.3d at 547 (quoting United States v. Moulden, 478

F.3d 652, 657 (4th Cir. 2007)); Crudup, 461 F.3d at 440.                            A

revocation        sentence      is     substantively      unreasonable       if   the

                                           7
district court did not rely on a proper basis in rendering its

sentence.    Crudup, 461 F.3d at 440.

     Only     if    a     sentence       is       procedurally        or    substantively

unreasonable       do    we    proceed    to       the     second     step:    determining

whether the sentence is “plainly unreasonable.”                            Id. at 439.     A

sentence is plainly unreasonable if it runs “afoul of clearly

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

                                              B.

     Townes challenges his revocation sentence as procedurally

unreasonable.           He contends that the district court committed

plain procedural error when it failed to address his arguments

in favor of a sentence below the advisory range and failed to

explain why it imposed the sentence rendered.                         We agree.

     While a district court “need not be as detailed or specific

when imposing a revocation sentence as it must be when imposing

a post-conviction sentence,” it must give some explanation or

indication of its reasoning.                  See id. at 547.               As this Court

explained in Thompson, “to hold otherwise, district courts could

effectively        thwart      appellate           review       of    any     within-range

revocation sentences they impose.”                   Id.

     The     Government         argues        that       the    district      court   shed

sufficient    light       on    its   reasoning          when    it    noted,     prior   to

hearing argument from Townes’s counsel, that it “considered the

policy statements on revocation contained in Chapter Seven of

                                              8
the Sentencing Guidelines as well as relevant factors listed in

18 United States Code 3553(a).”                    The Government further contends

that,    between       the   district     court’s      declaration            that    Townes’s

conduct constituted a “most serious Grade A violation” and its

recommendation that Townes receive mental health treatment while

incarcerated,          the    district     court       adequately           explained       its

decision    to    deny       Townes’s    request       for    a    sentence        below    the

advisory range.

        We are unpersuaded by the Government’s contentions.                                 Were

we to agree with the Government, we would be reaching the type

of “speculative conclusion” we cautioned against in Thompson.

Id.      Most    assuredly,       a     district      court       is    not      required    to

“robotically       tick       through      §       3553(a)’s       every         subsection.”

Moulden, 478 F.3d at 657 (quoting, United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006)).                    However, by merely stating that

it had “weigh[ed] all the factors,” the district court left this

Court to engage in wide-ranging speculation as to how the policy

statements       and    §    3553(a)     factors      balanced         in     light    of   the

opposing     arguments          offered        by     defense          counsel        and    the

Government.       This is not to suggest that the district court did

not adequately take the parties’ arguments into consideration

when     formulating         Townes’s     sentence;      rather,            it   means      that

because a sufficient explanation is essential to the “perception

of fair sentencing” and “meaningful appellate review,” Gall v.

                                               9
United States, 552 U.S. 38, 50 (2007), a revocation sentence

cannot be deemed procedurally reasonable when this Court can

only guess as to the district court’s actual reasoning.

       Notably, the Government conceded at oral argument that the

explanation provided by the district court would not pass muster

if this were a direct appeal from an original sentence. Given

the paucity of reasoning explaining the sentence in this record,

we find no support in our precedents for the manner in which the

Government would parse the minimal burden on the district court

to explain the reasons for its sentence.

                                          C.

       Because we find the sentence procedurally unreasonable, we

must   now    consider   whether     it    was    plainly   so.    Because      this

Circuit      has   clearly    articulated        that   a   district    court    is

“obligat[ed] to provide some basis for appellate review when

imposing a revocation sentence, however minimal that basis may

be,” Thompson, 595 F.3d at 548-49, the district court’s failure

to offer any explanation for imposing the top-of-the-guidelines

sentence     rendered,   in   light       of   counsel’s    presentations,      runs

afoul of clear circuit precedent.                Accordingly, we conclude that

the sentence is plainly unreasonable.

                                          D.

       Finally,     despite    the        Government’s      arguments    to     the

contrary, we are unable to conclude that the district court’s

                                          10
failure   to   issue      a    reasoned     sentence      was    harmless.         “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.’”                    Id. at 548 (quoting United

States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)).                          While the

Government     argues         that   the     mitigating      evidence     offered         by

Townes’s counsel was relatively weak in light of its evidence

demonstrating       escalating       and     dangerous      behavior,        we     cannot

presume   that      the   district         court   would    not    have   rendered        a

different sentence had it explicitly considered the arguments of

Townes’s counsel.         As an example, Townes’s counsel emphasized to

the district court that Townes was “not a drug user” and had not

produced a positive drug test throughout his time (more than

eighteen months) on supervised release.                    Despite this evidence,

the   district   court        recommended        that   Townes     undergo    intensive

drug treatment while incarcerated.                 Reflecting on this potential

incongruity—and without any explanation to the contrary—it is

reasonable     to     conclude       that        the    district     court        entirely

overlooked this non-frivolous argument offered in mitigation of

Townes’s conduct.         Because the district court did not adequately

explain its basis for rendering the sentence chosen and Townes

presented      non-frivolous           arguments          that,      if      explicitly

considered, could have resulted in a different sentence, we are



                                            11
unable     to   find   that   the   procedural   sentencing   error   was

harmless.

                                    III.

     For the foregoing reasons, the judgment is vacated and the

case is remanded to the district court for a new sentencing

hearing.    We deny Townes’s motions to file a pro se supplemental

brief as moot.

                                                   VACATED AND REMANDED




                                     12
NIEMEYER, Circuit Judge, dissenting:

      After revoking Onrey Townes’ supervised release because he

had committed two crimes, at least one of which was a “crime of

violence,” and because he had failed to participate in mental

health treatment, the district court imposed a sentence of 21

months’ imprisonment, within the Sentencing Guidelines’ range.

The   majority       opinion    now       vacates    that    sentence       as    plainly

unreasonable        because    the    district       court    did    not     adequately

explain its reasons for imposing it.                       The majority concludes

that, by not saying enough, the district court “thwart[ed]” our

ability     to      review     the    sentence,          leaving    us     to     make   a

“speculative conclusion” about the reasons for it.

      On this record, the majority opinion is unfathomable and

leads only to needless procedural churning.                    As we have said, we

should    be     “hard-pressed       to    find    any    explanation      for    within-

range,    revocation     sentences         insufficient      given    the       amount   of

deference      we     afford    district          courts     when    imposing       these

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

Cir. 2010) (emphasis added).                Even so, on this record, we know

exactly why the district court imposed the sentence.                              I would

affirm.

      As part of his sentence for possessing a stolen firearm and

aiding and abetting, in violation of 18 U.S.C. §§ 922(j), 924,

and 2, Townes was given a three-year term of supervised release,

                                            13
which included conditions that he not commit another crime and

that he participate in a mental health treatment program.               On

the   motion   of   Townes’   probation   officer,   the   district   court

revoked   Townes’     supervised   release   for     violation   of   these

conditions.     The court found that Townes (1) committed “felony

first degree burglary” of a residence; (2) committed another

crime of “attempted breaking and entering of a building”; and

(3) “fail[ed] to participate as directed by a probation officer

in a mental health program.”        The district court calculated the

Sentencing Guidelines’ recommended range to be 15 to 21 months’

imprisonment.

      Arguing for a downward departure from that range, Townes’

counsel pointed out:

      Mr. Townes is 22 years old. He’s been living with his
      sister in Wilson.    He’s engaged.   He has two three-
      month-old boys. He’s excited about being a father and
      as soon as he can get this behind him he wants to get
      married and help raise those children.

      He was diagnosed with bipolar and schizophrenia when
      he was a child, Your Honor. That’s documented in his
      presentence report and he’s struggled with this for
      years.

      He does want the court to know that he wants mental
      health counseling.    That the reason he missed those
      appointments, it wasn’t because he did not want to go
      or because he did not feel that he needed it. He was
      -- Your Honor, he got confused.

Counsel also noted that Townes had been employed in some work,

that he had other “job possibilities lined up,” and that he

planned to “get his GED.”
                                    14
     The government argued for an upward departure of 24 months’

imprisonment, pointing out:

     [W]hen [Townes] bonded out on the state charge for the
     burglary[,] . . . he went back to the same victims’
     house and shouted at them -- shouted threats at them
     from across the street.

     I would like the court to also know that his federal
     conviction related to possession of stolen firearms as
     a result of a residential break-in.

     It does   not appear that his behavior has been deterred
     in the    least.   He had a break-in for which he was
     charged    for the federal conviction and admitted to
     another   break-in in Wilson County.

     These two break-ins happened, you know, just minutes
     apart in Wilson, and we believe that he poses a danger
     to the community and shows escalating behavior, bad
     behavior, criminal behavior by his actions on March
     the 15th.

     The    district   court   rejected    each   party’s   request   for   a

departure    from   the   Guidelines’     recommended   range,   sentencing

Townes to 21 months’ imprisonment, the top of the recommended

range.     The court explained:

     The court has considered the policy statements on
     revocation   contained   in   Chapter  Seven of the
     Sentencing Guidelines as well as relevant factors
     listed in 18 United States Code 3553(a).

                               *    *       *

     Well, it’s a grade -- most serious grade violation is
     A. ∗


     ∗ The Sentencing Guidelines provide that a Grade A violation
involves “conduct constituting (A) a federal, state, or local
offense punishable by a term of imprisonment exceeding one year
that (i) is a crime of violence . . . .”                 U.S.S.G.
(Continued)
                                    15
                                        *      *         *

      Well, the court finds that he’s violated the terms of
      the judgment by criminal conduct as I’ve indicated,
      felony burglary and attempted break-in.

      After weighing all the factors, it’s ordered and
      adjudged that the supervision term heretofore granted
      be revoked. The defendant is ordered committed to the
      custody of the Bureau of Prisons or its authorized
      representative for a period of 21 months.

      The court recommends that while incarcerated [Townes]
      receive mental health treatment and he participate in
      the intensive drug treatment program.

It is difficult to conceive of what more the district court

could have said in the context of this particular sentencing

hearing.      After    hearing          the   evidence         and   the      arguments,       the

court explained that Townes’ violation was the “most serious”

recognized       by   the        Sentencing          Guidelines          --     a      Grade     A

violation -- and that Townes had a mental health problem that

needed     treatment,       explicitly          recommending            that      he    receive

treatment    during     his       sentence.           The      court     rejected       Townes’

request    for    a   downward       departure,              obviously     because      of     the

seriousness      of   the    violation,            and       rejected    the    government’s

request for an upward departure, obviously recognizing some of

the   positive    points         presented      by    Townes’        counsel.          This    was

further    evidenced        by    the       court’s      concluding        note     that,      “if


§ 7B1.1(a)(1); see also id. § 7B1.1 cmt. n.2 (explaining the
meaning of “crime of violence” by reference to U.S.S.G. § 4B1.2,
which lists “burglary of a dwelling” as a crime of violence).



                                               16
[Townes] comes back, . . . there won’t be much sympathy for

him,”    implying    some    level    of    sympathy   with     the   within-range

sentence it imposed.

       This record is not so vacant as to leave us at a loss as to

why the court imposed the 21-month sentence.                    And certainly, it

is more than adequate when considering the standard that governs

our review of a district court’s decision to impose a revocation

sentence within the Guidelines’ recommended range.                         In those

circumstances, as already noted, we should be “hard-pressed to

find any explanation . . . insufficient.”                 Thompson, 595 F.3d at

547.     In addition, we have recognized that a formal explanation

made directly in connection with the imposition of a sentence is

not    required     when    some   explanation     “may    be    clear     from   the

context.”     Id.    Only if the district court fails to “giv[e] any

indication of its reasons” for the sentence or if the context

fails    to   illuminate     those    reasons,    id.,    should      we   deem   the

court’s       explanation          “plainly      unreasonable”         and        thus

insufficient, see United States v. Crudup, 461 F.3d 433, 437

(4th Cir. 2006).

       I can “see no reason to direct a remand that would serve no

purpose.”     United States v. Bennett, 698 F.3d 194, 195 (4th Cir.

2012).    I would affirm.




                                           17
