UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4252

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GORDON BLAKE,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Frank W. Volk, District Judge. (5:19-cr-00025-1)

Submitted: November 20, 2020 Decided: January 21, 2021

Before AGEE, HARRIS, and RICHARDSON, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, Jennifer Rada Herrald, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gordon Blake appeals the sentence of 168 months’ imprisonment and 20 years’

supervised release imposed following his guilty plea to possession of child pornography,

in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). On appeal, Blake raises three

challenges to the procedural reasonableness of his term of imprisonment and supervised

release conditions. We affirm in part, vacate in part, and remand for resentencing.

I.

Generally, we review a sentence for reasonableness, applying “a deferential abuse-

of-discretion standard.” Gall v. United States,

(2007). We first evaluate

the sentence for significant procedural error, such as improperly calculating the Sentencing

Guidelines range, inadequately considering the § 3553(a) factors, or insufficiently

explaining the chosen sentence. United States v. Nance,

(4th Cir. 2020),

cert. denied, No. 20-5825,

(U.S. Nov. 2, 2020). In assessing Guidelines

calculations, we review factual findings for clear error and legal conclusions de novo.

United States v. Hawley,

(4th Cir. 2019). Only if the sentence is

procedurally reasonable may we consider whether it is substantively reasonable. United

States v. Provance,

(4th Cir. 2019).

II.

Blake first asserts that the district court clearly erred in refusing to sua sponte award

him an additional one-level reduction for acceptance of responsibility under U.S.

Sentencing Guidelines Manual § 3E1.1(b) (2018), because the Government arbitrarily

declined to move for the reduction after his timely plea. A defendant is entitled to a two-

2 level reduction if he “clearly demonstrates acceptance of responsibility for his offense.”

USSG § 3E1.1(a). If the defendant qualifies for this reduction and has an offense level of

16 or greater, the Guidelines authorize an additional one-level reduction

upon motion of the [G]overnment stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the [G]overment to avoid preparing for trial and permitting the [G]overnment and the court to allocate their resources effectively[.]

USSG § 3E1.1(b). “In general, the conduct qualifying for a decrease in offense level under

subsection (b) will occur particularly early in the case.” USSG § 3E1.1 cmt. n.6.

The Government “retains discretion to determine whether the defendant’s assistance

has relieved it of preparing for trial,” because “the Government is in the best position” to

make that determination. United States v. Divens,

(4th Cir. 2011)

(emphasis omitted). The Government therefore may “refuse to move for an additional one-

level reduction, but only on the basis of an interest recognized by the [G]uideline itself.”

. The district court may compel the Government to move for the additional

reduction if the Government has withheld such a motion on improper grounds.

.

Here, Blake pled guilty only four days before his trial was scheduled to begin.

While Blake asserts that he was forced to enter a belated plea in light of circumstances

beyond his control, Blake’s rationale for his belated plea did not render the Government’s

refusal to seek a USSG § 3E1.1(b) reduction arbitrary or unfounded. Instead, its decision

was based on the substantial trial preparation it had to undertake prior to Blake’s plea—

preparations supported by the undisputed record and unsurprising given the proximity to

the scheduled trial date. Contrary to Blake’s assertion, we find nothing in the

3 Government’s other arguments opposing the one-level reduction during sentencing to

undermine its clear and justified rationale. Because the Government based its decision on

an interest directly recognized by USSG § 3E1.1(b), we conclude that the district court

properly declined to compel the Government to seek the additional one-level reduction.

III.

Blake next contends that the district court erred by failing to address his numerous

mitigation arguments when explaining the basis for his sentence of imprisonment. In

announcing a sentence, the court “must make an individualized assessment based on the

facts presented and must state in open court the particular reasons supporting its chosen

sentence.” Provance,

(internal quotation marks omitted). The court must

“address the parties’ nonfrivolous arguments in favor of a particular sentence, and if the

court rejects those arguments, it must explain why in a sufficiently detailed manner to allow

[us] to conduct a meaningful appellate review.” United States v. Blue,

(4th Cir. 2017). “The adequacy of the sentencing court’s explanation depends on the

complexity of each case[,] and the appropriateness of brevity or length, conciseness or

detail, when to write, what to say, depends upon the circumstances.” United States v.

Arbaugh,

(4th Cir. 2020) (alterations and internal quotation marks

omitted), cert. denied, No. 20-5026,

(U.S. Oct. 5, 2020).

“[A] talismanic recitation of the § 3553(a) factors without application to the

defendant being sentenced does not demonstrate reasoned decisionmaking or provide an

adequate basis for appellate review.” United States v. Carter,

(4th Cir.

2009). “[W]here the district court could have made precisely the same statements in

4 support of a different sentence, we have found the explanation to be inadequate and have

remanded for resentencing.” Blue,

(internal quotation marks omitted).

Ultimately, the court must “set forth enough to satisfy the appellate court that it has

considered the parties’ arguments and has a reasoned basis for exercising its own legal

decisionmaking authority.” United States v. Lozano,

(4th Cir. 2020)

(alterations and internal quotation marks omitted).

“It is sometimes possible to discern a sentencing court’s rationale when an

explanation is lacking.” United States v. Lewis,

(4th Cir. 2020)

(alteration and internal quotation marks omitted). We therefore will not vacate a sentence

where “[t]he context surrounding a district court’s explanation . . . imbue[s] 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,

(4th Cir.

2006). Yet, we “may not guess at the district court’s rationale, searching the record for

statements by the Government or defense counsel or for any other clues that might explain

a sentence.” United States v. Ross,

(4th Cir.), cert. denied,

(2019) (citations and internal quotation marks omitted). Nor may we “assume that the

court has silently adopted arguments presented by a party,” Nance,

(internal quotation marks omitted), or “assume that a sentencing court truly considered a

defendant’s nonfrivolous arguments or individual characteristics when the record fails to

make it patently obvious,” Blue,

(internal quotation marks omitted).

Where the district court addresses the defendant’s “central thesis” in mitigation, it

need not “address separately each supporting data point marshalled on its behalf.” Nance,

5

. Nonetheless, the court’s failure to give “specific attention” to

nonfrivolous arguments produces a procedurally unreasonable sentence. Lewis,

(internal quotation marks omitted). “At bottom, [we] cannot substitute our

assessment of the record for the district court’s obligation to explain its rationale in the first

instance.”

(internal quotation marks omitted).

As Blake observes, the district court did not explicitly acknowledge or discuss his

numerous arguments in favor of a downward variance, including: (1) his assertion that the

severity of his offense fell at the lower end of the spectrum of child pornography offenders;

(2) his military service; (3) his medical history; (4) the significant collateral consequences

he faced from his conviction; and (5) his policy dispute with the child pornography

Guidelines. While the court generally recited the § 3553(a) factors, its statements did not

demonstrate consideration of Blake’s arguments and could have supported any number of

permissible sentences. See Blue,

; Carter,

.

We conclude that the district court’s findings regarding the nature and

circumstances of Blake’s offense demonstrated its rejection of Blake’s “central thesis”

about the severity of his crime. See Nance,

. Though more clarity was

possible, the court’s explanation adequately addressed this aspect of Blake’s argument. As

the Government observes, the Guidelines generally account for such distinctions in

criminal culpability, and the mere fact that Blake did not commit a more severe crime does

not, standing alone, mitigate the offense he in fact committed. Cf. United States v. Borho,

(6th Cir. 2007) (“[B]oth the Guidelines and the underlying statutes

clearly distinguish between one who views pornography in private and one who engages

6 in interactive behavior.”). Thus, we conclude that the court’s findings rendered it “patently

obvious” that the court believed Blake was not among the least culpable of child

pornography offenders. See Blue, 877 F3.d at 521 (internal quotation marks omitted).

With respect to Blake’s remaining arguments, however, we find the district court’s

explanation lacking. Nothing in the court’s statements at sentencing demonstrated its

meaningful consideration of Blake’s arguments regarding his military service and medical

history, his dispute with the Guidelines, or his contention that the collateral consequences

of his offense could serve, in his particular circumstances, to offset the need for lengthy

imprisonment.

The Government asserts that the court was not required to address these arguments

because they were too ambiguous, frivolous, or general to warrant the court’s specific

attention. We have thoroughly reviewed the parties’ submissions, however, and are

unpersuaded by the Government’s arguments on these issues.

We need not vacate Blake’s sentence if the Government establishes that the court’s

omissions were harmless. See United States v. Boulware,

(4th Cir.

2010). “To establish harmless error, the [G]overnment bears the burden of demonstrating

that the district court’s explicit consideration of the defendant’s arguments would not have

affected the sentence imposed.” Lewis,

(alteration and internal quotation

marks omitted). We conclude that the Government has not satisfied this burden and

resentencing is required.

IV.

7 Finally, Blake asserts that the district court abused its discretion in imposing a

supervised release condition requiring him to submit to warrantless searches of his home,

person, and property by the probation officer upon reasonable suspicion that he has violated

a condition of supervised release (the “warrantless search condition”). He argues that this

condition produces a greater deprivation of liberty than necessary and is not reasonably

related to his conviction, history, or characteristics.

District courts enjoy “broad latitude” in crafting special conditions of supervised

release, and we “review the court’s decision to impose a condition of supervised release

for an abuse of discretion.” United States v. Holman,

(4th Cir. 2008)

(internal quotation marks omitted). A district court can impose a discretionary supervised

release condition if it is “reasonably related” to various enumerated sentencing factors.

(d)(1); see

(a)(1), (2)(B), (C), (D). The condition also

must “involve[] no greater deprivation of liberty than is reasonably necessary,”

(d)(2), and be “consistent with any pertinent policy statements issued by the

Sentencing Commission,”

(d)(3). The sentencing court must make the

§ 3583(d) inquiry “on an individualized basis,” rather than imposing a condition on broad

categories of offenders. United States v. Bender,

(8th Cir. 2009)

(internal quotation marks omitted); see United States v. Voelker,

(3d

Cir. 2007).

Blake does not dispute, and the record supports, that the warrantless search

condition is consistent with the Sentencing Commission’s policy statements and the

supervised release statute, which recommend even broader warrantless search conditions

8 for sex offenders. See

(d); USSG § 5B1.3(d)(7)(C). The facts found by

the district court regarding Blake’s offense refute his assertions that the warrantless search

condition is not reasonably related to his offense and history and produces an unnecessary

deprivation of liberty. Instead, the condition reasonably closes gaps in the probation

officer’s authority to ensure Blake does not recidivate, while tempering the probation

officer’s discretion by limiting permissible searches to those conducted in a reasonable

time and manner and on reasonable suspicion of a supervised release violation. We

therefore find no abuse of discretion in the district court’s decision to impose the

warrantless search condition.

V.

Accordingly, we affirm the district court’s judgment in part, insofar as Blake

challenges the extent of his USSG § 3E1.1 reduction and the warrantless search condition.

We vacate the district court’s judgment in part, insofar as Blake challenges the district

court’s explanation of his sentence, 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.

AFFIRMED IN PART, VACATED IN PART, REMANDED

9