UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-5191

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
JAVAAD FISHER, a/k/a Lover Butt,
Defendant Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, District
Judge. (3:03-cr-00394-JRS-10)

Argued:

February 1, 2013

Decided:

March 15, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Shedd wrote a dissenting opinion.

Judge

ARGUED: Elizabeth W. Hanes, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Richmond, Virginia, for Appellant.
Roderick Charles
Young, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, Caroline S. Platt, Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant.
Neil H. MacBride, United States
Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
In

December

2003,

Appellant

Javaad

Fisher

pleaded

guilty to one count of conspiracy to possess with intent to

distribute cocaine base in violation of 21 U.S.C. 846 (2006).
Thereafter, he was sentenced to 188 months imprisonment to be
followed by a five year term of supervised release.

Following

the completion of his term of imprisonment, Appellant was twice

found to be in violation of the conditions of his supervised
release.

As

result,

his

term

of

supervised

release

was

revoked twice, once in November 2010 and again in November 2011.

Appellants
months

first

revocation

imprisonment

original

term

of

to

be

sentence

followed

supervised

was

by

release.

for

the

term

of

six

remainder

of

his

Appellants

second

revocation sentence was for a term of 30 months imprisonment

with no ensuing supervised release.
Appellant
arguing

that

it

appeals
was

his

second

procedurally

revocation

unreasonable

sentence,

because

the

district judge failed to provide an individualized explanation

for the sentence.

We agree.

Accordingly, we vacate Appellants

revocation sentence and remand to the district court for resentencing.

I.
In

late

2003,

Appellant

was

indicted

along

with

several other members of the Petersburg, Virginia-based Third

2

Ward Gang in the United States District Court for the Eastern
District of Virginia.

On December 16, 2003, Appellant pleaded

guilty to conspiracy to possess with intent to distribute 50

grams or more of cocaine base in violation of 21 U.S.C. 846
(2006).

On March 17, 2004, Appellant was sentenced on that

conviction

to

188

months

imprisonment

with

five

2005,

the

years

of

supervised release to follow.

One
filed

year

motion

Appellants

5,

sentence

2005,

on

requesting

another prosecution.
April

later,

the

based

March
that

on

his

17,

the

district

substantial

court

entered

court

reduce

assistance

See Fed. R. Crim. P. 35.

district

Government

in

Accordingly, on

an

order

reducing

Appellants sentence from 188 months imprisonment to 84 months

imprisonment.
Upon

successful

completion

of

his

term

of

imprisonment, Appellant began to serve his term of supervised

release on October 2, 2009.

On November 1, 2010, Appellants

probation officer filed a petition alleging Appellant violated

the terms of his supervised release by (1) failing to follow
instructions of the probation officer; and (2) testing positive
for

both

marijuana

and

cocaine.

The

petition

recommended

revocation sentencing range of six to 12 months imprisonment

with three years of supervised release to follow and a statutory

maximum sentence of 60 months imprisonment. 1
On December 6, 2010, Appellant pleaded guilty to the
alleged supervision violations.

At the revocation hearing,

Appellant argued for a sentence of three months imprisonment

because (1) he had a documented substance abuse problem which
made

it

difficult

supervised
training

for

release;

program

for

(2)

him
he

data

to

comply

had

with

successfully

cabling;

and

(3)

the

terms

of

his

job

completed
he

had

expressed

interest in attending an in-patient drug treatment program.

In response, the Government argued that Appellant (1)
did not actively participate in the drug treatment program; (2)
denied that he had a drug problem; (3) failed to follow the
probation officers instructions by failing to find a job; and
(4) had previously been accorded leniency through the Rule 35
reduction to his original sentence.

Specifically, Appellants original offense of conviction,

conspiracy to possess with intent to distribute 50 grams or more
of cocaine base, is a Class A Felony. Thus, Appellants
statutory
maximum
revocation
sentence
was
60
months
imprisonment. See 18 U.S.C. 3583(e)(3).
Additionally, Appellants criminal history category was IV.
This, coupled with the fact that all of his supervised release
violations were Grade C violations, resulted in a sentencing
range of six to 12 months imprisonment.
See U.S.S.G.
7B1.4(a).

After

hearing

these

arguments,

the

district

court

sentenced Appellant to six months imprisonment to be followed by

the remainder of his term of supervised release.

In so doing,

the district court indicated:

Because of this violation, the Court will sentence Mr.
Fisher to a period of incarceration of six months, and
then there will supervised release will continue
following this period of incarceration.
Mr. Fisher,
like the prosecutor indicated, normally, you know, I
would be giving you a sentence of five years instead
of six months.
But Im going to give you an
opportunity to try some drug treatment and see if the
Probation Officer can work with you to get your
problems
solved.
But
you
have
to
have
some
consequences for violating the conditions of your
supervised release, and that will be the term of
incarceration.
As I said, following that, there will
be supervised release, and we will make efforts to try
to deal with your drug problem.
But understand, if
that doesnt work, if the Probation Officer brings you
back in here, I wont have any choice but to send you
to jail, and for a long time.
So Im trying to give
you some opportunity.
J.A. 33-34. 2
After

Appellant

served

the

six

month

term

of

imprisonment, his term of supervised release resumed on June 8,

2011.
a

On November 1, 2011, Appellants

second

revocation

petition,

probation officer filed

alleging

Appellant

had

again

violated the terms of his supervised release by (1) driving with

a

suspended

license;

(2)

failing

to

follow

the

probation

Citations to the Joint Appendix (J.A.) refer to the

Joint Appendix filed by the parties in this appeal.

officers instructions to file periodic employment search forms;

and

(3)

using

marijuana.

Again,

Appellants

revocation

sentencing range was six to 12 months imprisonment, this time

with a statutory maximum sentence of 54 months imprisonment. 3
On November 30, 2011, Appellant appeared before the
district court and pleaded guilty to the latter two violations. 4
The

Government

statutory
support,

argued

maximum
the

that

sentence

Government

Appellant

of

54

argued

months

that

should

receive

imprisonment.

Appellant

had

the
In

received

several breaks from the court and, therefore, had exhausted

all of his chances.

J.A. 44.

Specifically, the Government

noted (1) the fact that Appellant had initially been permitted
to plead guilty to a drug charge rather than the more severe
racketeering charge; (2) the 50% sentence reduction Appellant
received

for

investigation;

providing
and

(3)

substantial
the

fact

that

assistance
Appellant

in

another

received

the

Because the second round of supervision violations again

involved Grade C violations, Appellants revocation sentencing
range was the same.
However, because Appellant had already
served six months imprisonment on the initial revocation, his
statutory
maximum
sentence
was
reduced
to
54
months
imprisonment. See 18 U.S.C. 3583(e)(3).
4

Appellant had been charged with driving on a suspended

license in Virginia between the first and second revocation
hearings. However, prior to the second revocation hearing, the
state
prosecutor
voluntarily
dismissed
that
charge.
Accordingly, the Government elected not to pursue it as a basis
for supervised release revocation.

lowest possible Guidelines sentence for his initial supervised

release violation.
In response, Appellant agreed that supervised release
was

not

working

for

proposed sentence.

him

but

disagreed

with

the

Governments

In support of a lower sentence, Appellant

argued (1) his original sentence reduction was not a break

because, to earn that reduction, he had to testify at the trial
of five other defendants, placing himself and his family at risk
of harm; (2) his continued inability to pass a drug test was
based on his documented history of drug addiction but, at the
time of the revocation, he was actively participating in a drug
treatment program; (3) his alleged failure to file employment
search reports was merely a technical violation because he was
actively seeking a job and had obtained a handyman license; and
(4)

the

fact

that

he

did

not

have

access

to

reliable

transportation greatly impeded his job search.

Thus, Appellant argued, a sentence of the statutory
maximum

doesnt

Court[,]
district

J.A.
court

reflect
46,

the

and,

impose

conduct

therefore,
sentence

of

that
he
12

he

brings

requested
months

and

to

this

that

the

one

day.

Additionally, Appellant himself made a statement to the court,

noting that, although he was still addicted to drugs, he had
left his criminal life behind and wanted to become a good
father to his young daughter.

J.A. 46-47.
7

After the parties had completed their arguments, the

court pronounced its sentence, stating only:
All right, the supervised release will be revoked
pursuant to [Appellants] plea to the conduct that was
alleged.
And the Court will impose the following
sentence: A sentence of 30 months incarceration
without any supervised release to follow. I think we
have done all that we can do for Mr. Fisher.
J.A. 47.

Appellant timely noted an appeal.

On appeal, Appellant argues that the district court

procedurally

erred

by

failing

to

provide

explanation for the sentence it chose.

this

contention,

arguing

that,

in

particularized

The Government disputes

combination,

the

district

courts statements at both of Appellants revocation hearings

made the reasons underlying the 30 month sentence sufficiently
clear.
II.
We will affirm a sentence imposed after a revocation
of

supervised

unreasonable.

release

unless

that

sentence

is

plainly

See United States v. Crudup, 461 F.3d 433, 439-40

(4th Cir. 2006).

In making this determination, we must first

determine whether the sentence is reasonable.

See id. at 438.

This inquiry parallels ordinary reasonableness review with some

modification.

See United States v. Moulden, 478 F.3d 652, 656

(4th Cir. 2007) (This initial inquiry takes a more deferential

appellate posture concerning issues of fact and the exercise of

discretion

than

reasonableness

review

for

guidelines

sentences. (quoting Crudup, 461 F.3d at 439)). 5

Only if we determine that a sentence is unreasonable
do we determine whether it was plainly so.

See Moulden, 478

F.3d at 657.

In making this determination, we rely on the

definition

of

plain

analysis.

Crudup, 461 F.3d at 439.

that

we

use

in

our

plain

error

Specifically, an error is

plain where it is clear or, equivalently, obvious.

United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)).
Finally,

even

if

we

determine

that

revocation

sentence is plainly unreasonable, we will affirm the sentence if

the error is harmless.
544, 548 (2010).

See United States v. Thompson, 595 F.3d

Under this inquiry, the Government bears the

burden to establish that the error did not have a substantial

and injurious effect or influence on the result and we can say
with

fair

assurance,

consideration

of

the

that

the

defendants

district
arguments

courts
would

explicit
not

have

Additionally, not all of the 3553(a) factors are

applicable on review of a revocation sentence, as a district
court may not consider (1) whether the revocation sentence
reflects the seriousness of the offense, promotes respect for
the law, and provides just punishment for the offense as
discussed in 3553(a)(2)(A); or (2) whether there are other
kinds of sentences available as discussed in 3553(a)(3).
See Crudup, 461 F.3d at 439 (internal quotation marks and
alterations omitted).

affected the sentence imposed.

F.3d 832,

840

(4th

Cir.

2010)

United Stats v. Boulware, 604

(internal

quotation

marks

and

alterations omitted).
III.
A.
We
procedurally

first

Reasonableness

conclude

unreasonable. 6

Appellants
A

sentence

sentence
is

was

procedurally

unreasonable when, inter alia, the sentencing court fails to

adequately explain the chosen sentenceincluding an explanation
for any deviation from the Guidelines range.
51.

Gall, 552 U.S. at

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, but it still must provide a statement
of reasons for the sentence imposed.

Thompson, 595 F.3d at

547 (quoting Moulden, 478 F.3d at 657).

Normally, we review revocation sentences for procedural

and substantive reasonableness.
See Crudup, 461 F.3d at 438.
However, because Appellant does not challenge the substantive
reasonableness of his sentence, we need only determine whether
his sentence was procedurally unreasonable.
Further, our
conclusion
that
Appellants
sentence
was
procedurally
unreasonable
moots
any
consideration
of
substantive
reasonableness. See United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (If, and only if, we find the sentence
procedurally
reasonable
can
we
consider
the
substantive
reasonableness of the sentence imposed under an abuse-ofdiscretion standard.) (quoting Gall v. United States, 552 U.S.
38, 51 (2007)).

10

Additionally,

[w]here

the

defendant

or

prosecutor

for

imposing

different

presents

non-frivolous

reasons

sentence

than

forth

that

set

in

the

advisory

Guidelines,

district judge should address the party's arguments and explain

why he has rejected those arguments.

Carter, 564 F.3d at 328

(quoting Rita v. United States, 551 U.S. 338, 357 (2007)).

we

held

in

Carter,

jurisprudence

plainly

the

Supreme

precludes

Court's

any

recent

presumption

As

sentencing
that,

when

imposing a sentence, the district court has silently adopted

arguments presented by a party.

Rather, the district judge, not

an appellate court, must make an individualized assessment based

on the facts presented to him.

See Carter, 564 F.3d at 329

(quoting Gall 552 U.S. at 49-50).

Finally, in all sentencing appeals involving an outof-Guidelines sentence, as we have here, the district court
must give serious consideration to the extent of the departure
or variance, and must adequately explain the chosen sentence to
allow

for

meaningful

appellate

review

and

to

promote

the

perception of fair sentencing.

United States v. King, 673

F.3d

(quoting

274,

283

(4th

Cir.

2012)

United

States

v.

Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011)).

Here,

Appellants

sentence

was

procedurally

unreasonable because the district court failed to address any of

Appellants specific arguments raised at the second revocation
11

hearing.

As noted, at the second revocation hearing, Appellant

made several arguments in favor of his proposed sentence, some

of which had not been raised at the prior revocation hearing.
In

particular,

argued

for

the

at

the

first

second
time

revocation

that

(1)

he

hearing,
had

Appellant

been

actively

participating in drug treatment programs; (2) he had obtained a

business license to become a handyman and was actively seeking
employment; and (3) his initial sentence reduction should not be
considered as a reason for imposing a higher revocation sentence
because it was not a break inasmuch as he had to testify
against other gang members in order to earn that reduction.
This is significant because even if we were to accept
the Governments argument that we should simply consider the
district courts statements from the initial revocation hearing
in order to satisfy Carter, we still could not find that the
district

court

explicitly

addressed

Appellants

arguments

as

required by Carter.

This problem is compounded by the fact

that,

Appellants

in

this

case,

sentence

represented

increase from the top of the revocation sentencing range.

150%
As

noted, the specificity with which a district court must explain

its chosen sentence increases in cases where the district court
imposes an above-Guidelines sentence.
283.

Accordingly,

in

this

case,

12

the

See King, 673 F.3d at

district

courts

sole

explanation, I think we have done all that we can do for Mr.

Fisher is insufficient to support the sentence imposed.
In response, the Government argues that, because the
ultimate sentence imposed fell between the parties recommended
sentences, the district court necessarily considered each of the
parties arguments when fashioning the sentence.

However, this

argument invites us to do precisely what Carter forbids us to do

and

to

presume

that

the

Appellants arguments.

district

court

silently

considered

Accordingly, because the district court

did not expressly consider the arguments that Appellant made at

the

second

revocation

hearing,

Appellants

sentence

was

Appellants

sentence

was

procedurally unreasonable.
Having

concluded

that

unreasonable, we must now determine whether it was plainly so.

To

be

plainly

unreasonable,

clearly settled law.

sentence

must

run

afoul

of

Thompson, 595 F.3d at 548. In Thompson,

we noted that, since the Moulden decision in 2007, it has been

clearly settled in the Fourth Circuit that a district court must
explicitly
revocation

state

its

sentence.

reasons

See

for

Thompson,

imposing

595

F.3d

at

a
548

particular
(We

are

certain, though, that the district court's obligation to provide

some

basis

for

appellate

review

when

imposing

revocation

sentence, however minimal that basis may be, has been settled in
this Circuit since at least Moulden.).
13

Accordingly, because

the

district

court

did

not

follow

this

clearly

settled

law,

Appellants sentence was plainly procedurally unreasonable.

B. Harmless Error
Finally, the Government contends that any error was
harmless because explicit consideration of Appellants arguments
on remand would not alter his sentence.

The Government bases

this argument on the fact that the district court had signaled
its intent to impose a lengthy sentence on Appellant at the
first revocation hearing and Appellants arguments for a reduced
sentence

at

the

straightforward.

second

revocation

hearing

Br. of Appellees 12.

were

brief

and

We disagree.

As noted, at the second revocation hearing, Appellant

made

different

arguments

revocation

hearing.

compelled

to

address

than

he

had

made

Accordingly,

the

district

these

arguments

at

and

the

first

court

was

provide

an

individualized explanation for its decision to deviate from

the Guidelines.

Because the district court did not do so, we

cannot conclude the error was harmless.

582

See Lynn, 592 F.3d at

(We cannot conclude that this error was harmless.

When

faced with an unexplained out-of-Guidelines sentence, we have in

the

past

remanded

for

resentencing

because

we

could

not

determine why the district court deemed the sentence it imposed

appropriate.

We see no reason to abandon this approach today.)

(internal citations and quotation marks omitted).

14

The Government cites two cases in which we applied

harmless error to a procedurally unreasonable sentence where the
error was based on a district courts inadequate explanation.
See, e.g., United States v. Hernandez-Frias, 475 Fed. Appx 488
(4th Cir. 2012); United States v. Boulware, 604 F.3d 832, 840
(4th Cir. 2010).
above-Guidelines

However, neither of these cases involved an

sentence.

This

is

significant

because,

as

noted, a district court has a heightened burden when explaining

an above-Guidelines sentence.
provided

no

individualized

Thus, because the district court

explanation

for

its

decision

to

impose an above-Guidelines sentence, we cannot apply harmless

error in this instance.
IV.
For these reasons, we vacate Appellants sentence and
remand to the district court for resentencing.
VACATED AND REMANDED

15

SHEDD, Circuit Judge, dissenting:

Javaad

Fishers

sentence

is

procedurally

even if it were not, any error is harmless.

reasonable

and,

Accordingly, I

respectfully dissent from the majoritys decision to vacate his

sentence and remand for further proceedings.
In reviewing a sentence imposed for violating supervised
release

we

apply

the

plainly

unreasonable

standard,

United

States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006), and take[]
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)

(internal

quotation

marks

omitted).

Relevant here, the courts statement of reasons need not be as

specific as has been required for departing from a traditional
guidelines range.
439)).

court

Id. at 657 (quoting Crudup, 461 F.3d at

is

required

to

place

on

the

record

an

individualized assessment based on the particular facts of the

case before it.

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

(4th Cir. 2009).

As

the

majority

individualized
revocation

recounts,

explanation

sentencing

on

the
the

hearing,

district
record

explaining

at

court

gave

Fishers
that

it

an

first
would

normally have sentenced Fisher to the statutory maximum of 60

months imprisonment but, in recognition of his drug problem, the
16

court

would

solved,

give

him

therefore

imprisonment.

an

only

(J.A. 33).

opportunity
imposing

to

get

sentence

his

problems

of

months

The court made clear, however, that

if that doesnt work, if the Probation Officer brings you back

in here, I wont have any choice but to send you to jail, and
for a long time.

(J.A. 34).

Fisher failed to heed this advice

and after his release he quickly violated his supervised release

conditions.
represented

At the second revocation hearing, the Government

by

the

same

Assistant

U.S.

Attorney

(AUSA)

who

originally prosecuted Fisher in 2003pressed for the statutory

maximum of 54 months imprisonment, 1 explaining

in detail the

numerous breaks Fisher had been afforded and his failure to take
advantage of the courts repeated leniency.

Fishers arguments

in response, made by the same attorney who represented him at

the

first

revocation

hearing,

were

unexceptional

and,

substance, no different from those at the first hearing. 2

in
The

At the first hearing, the Government argued for a sentence

of nine months imprisonment.
2

At the first revocation hearing Fishers attorney focused

on Fishers substance abuse and requested a more intensive drug
treatment program.
(J.A. 31).
Fishers attorney noted that
Fisher had not had any major issues while on supervision and
that he was trying to find a job but had been unable to do so.
Fisher himself then apologized to his community and his family.
At the second hearing, Fishers attorney argued that Fisher had
committed only technical violations, had consistently come to
this Court and said, I have a drug abuse problem, and was
attempting to find a job.
(J.A. 45-46).
Fisher again
(Continued)
17

court then imposed a sentence of 30 months, adding we have done

all that we can do for Mr. Fisher.
In my view, the district court provided an individualized
explanation for Fishers sentence during his sentencing process
at the first hearing.
implemented
provided

the

an

sentencing.

At the second hearing, the court simply

sentence

it

individualized

had

already

explanation

promisedand
forat

the

had
first

The courts words, that it had done all it could

for Fisher, indicate that it had given him a break the first
time with the promise of a significant sentence if Fisher failed
to take advantage of the opportunity.

I do not believe Carter

requires more, particularly given the more deferential standard

we employ in the supervised release context.

Here, the same

judge, the same AUSA, and the same criminal defense attorney
were

present

at

both

hearings.

In

fact,

Fishers

attorney

admitted at oral argument that she was not surprised that the
court

imposed

sentence

is

this

sentence.

procedurally

Therefore,

reasonable

and

believe

is

Fishers

certainly

not

plainly unreasonable.

apologized, claimed he had left his criminal life behind, and

mentioned that he wanted to be there for his daughter.
While
the words may have changed, the substance of Fishers arguments
was the same at both hearings.

18

Even

assuming

the

district

error, any error is harmless.

court

committed

procedural

United States v. Boulware, 604

F.3d 832, 838-39 (4th Cir. 2010).

Under the harmless error

standard, as it applies to procedural sentencing errors, the

government may avoid reversal only if it demonstrates that the
error

did

not

have

substantial

and

injurious

effect

or

influence on the result and we can say with fair assurance that
the district courts explicit consideration of [the defendants]
arguments would not have affected the sentence imposed.

Id. at

838 (internal quotation marks and alterations omitted).

Government

has

satisfied

that

standard

here.

The

The
same

experienced district judge sentenced Fisher in 2004, reduced his

sentence in 2005, and handled both revocation hearings.

The

judge warned Fisher at the first revocation hearing that Fisher

would

face

significant

jail

time

if

he

violated

supervised

release again, leaving us with no doubt that the court would

have imposed the same sentence, particularly given that Fishers
arguments were very weak.

Id. at 839.

Remanding this case

for further proceedings is a pointless waste of resources, id.

at 840, given that the district court will simply reenterwith
an additional paragraph of explanationthe same sentence, [a]
reasonable
affirm.

sentence

that

we

would

then

be

compelled

to

United States v. Savillon-Matute, 636 F.3d 119, 123

(4th Cir. 2011) (internal quotation marks omitted).

19

Clearly,

the

district

judge

handled

this

revocation

properly,

and

believe quite admirablystating clearly what he intended to do,

but

giving

behavior.
intention
result

in

the

defendant

one

last

chance

to

correct

his

To require the judge to simply restate his clear

and
the

determination
empty

under

formality

these
of

an

circumstances
unnecessary

would

remand.

United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012).
For these reasons, I respectfully dissent.

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