UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4841

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

ROBERT MICHAEL GEORGE,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Graham C. Mullen, Senior District Judge. (5:18-cr-00023-GCM-DCK-1)

Argued: September 21, 2021 Decided: November 24, 2021

Before FLOYD, THACKER, and HARRIS, Circuit Judges.

Vacated and remanded with instructions by unpublished per curiam opinion.

ARGUED: Teresa Kwong, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellee. ON BRIEF: Eric S. Dreiband, Assistant Attorney General, Alexander V. Maugeri, Deputy Assistant Attorney General, Tovah R. Calderon, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Amy Ray, Assistant United States Attorney, Kimlani Ford, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellant. Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

A jury convicted Robert Michael George, a former sergeant with the City of Hickory

Police Department, of using objectively unreasonable force against a pretrial detainee,

Chelsea Doolittle, depriving her of the constitutional right to due process of law, in

violation of

. The presentence report calculated an advisory guidelines

sentencing range for George’s crime of 70 to 87 months of imprisonment, but the district

court sentenced him to a downward variance term of four years’ probation. The

Government appeals, arguing that George’s sentence is procedurally and substantively

unreasonable. Because the district court grounded its reasoning for the chosen sentence in

conclusions contrary to the evidence and the jury’s verdict, we cannot uphold the sentence

as either procedurally or substantively reasonable. Accordingly, we vacate the sentence

and remand to a different judge for resentencing.

I.

The events giving rise to this case began on November 11, 2013, when Lieutenant

Vidal Sipe, also of the City of Hickory Police Department, came across an illegally parked

car that was blocking the flow of traffic in downtown Hickory, North Carolina. He

confronted two women who approached and entered the car and smelled alcohol emanating

from their persons and from inside the car. At that point, Sipe radioed for another officer

to bring a breathalyzer test.

George responded to Sipe’s radio request and arrived at the scene. Meanwhile, one

of the women, Chelsea Doolittle, moved into the driver’s seat of the car. Sipe ordered

3 Doolittle out of the car, but she became argumentative and noncompliant. George

eventually intervened to help Sipe get Doolittle out of the car. The officers arrested

Doolittle, placing her in handcuffs.

George then drove Doolittle to the police station. During the drive, Doolittle

became verbally abusive toward George. Upon their arrival, George parked the car, opened

Doolittle’s door, and asked her to step out. When Doolittle refused to get out of the car

after multiple demands, George reached into the car, grabbed a still-handcuffed Doolittle,

and thrust her face-down on the pavement. George then retrieved Doolittle’s cap from the

patrol car, picked up Doolittle from the ground, and escorted her into the police station. A

surveillance camera outside the police station recorded the full incident. As a result of this

interaction, Doolittle suffered a broken nose, serious dental injuries requiring multiple

surgeries, a concussion, and facial lacerations. She now suffers from memory loss, panic

attacks, and anxiety.

A federal grand jury in the Western District of North Carolina returned a two-count

indictment against George, charging him (1) with deprivation of rights while acting under

color of state law in violation of

, alleging that George willfully deprived

Doolittle’s right as a pretrial detainee to be free from an officer’s unreasonable use of force

(Count I); and (2) obstruction of justice in violation of

(Count II).

At trial, the government introduced the surveillance video footage described above,

medical testimony regarding Doolittle’s injuries, testimony from George’s supervisor, and

testimony from George’s use-of-force trainer that George’s actions were inconsistent with

his training. George and his expert witness testified that he simply lost his grip while he

4 was pulling Doolittle out of the patrol car and that Doolittle fell because her body went

limp.

With respect to the use-of-force charge in Count I, the district court instructed the

jury that it must find beyond a reasonable doubt (1) that George “acted under color of law,”

(2) that George deprived Doolittle of “the right of a pretrial detainee to be free from use of

objectively unreasonable force by a law enforcement officer,” and (3) that George “acted

willfully.” J.A. 458. With respect to willfulness, the district court explained that “[a]

person acts willfully if he acts voluntarily and intentionally with the specific intent to do

something the law forbids.” J.A. 461. The court further told that jury that “reckless

disregard of a person’s constitutional rights is evidence of specific intent to deprive that

person of those rights.” J.A. 463. The jury found George guilty on the use-of-force charge

in Count I and acquitted him on the obstruction-of-justice charge in Count II.

In a presentence investigation report (PSR), a probation officer wrote that George

“reach[ed] into the car with both arms and grab[bed] Ms. Doolittle” and “lift[ed] Ms.

Doolittle out from the back seat and slam[med] her down, face first, onto the driveway

while her hands [were] still handcuffed behind her back.” J.A. 563. The probation officer

applied a five-level increase to the base offense level for aggravated assault because

George’s actions caused serious bodily injury to Doolittle. The probation officer also

added six points because the offense was committed under color of law, two points because

Doolittle was restrained during the course of the offense, and two points for obstruction of

justice. These enhancements resulted in a total offense level of 29. With a criminal history

category of I, the Guidelines recommended 78 to 108 months of imprisonment. George

5 objected to the five-level increase for aggravated assault and the two-level increase for

obstruction of justice.

At sentencing, the district court overruled George’s objection to the five-level

increase for aggravated assault, agreeing with the government that Doolittle’s injuries

qualified as a serious bodily injury. The district court sustained George’s objection to the

two-level increase for obstruction of justice. Based on those conclusions, the district court

calculated the total offense level to be 27, resulting in a Guidelines range of 70 to 87 months

of imprisonment. The government sought a sentence at the low end of the Guidelines

range. George requested a non-custodial probationary sentence as a variance.

In the course of pronouncing George’s sentence and analyzing the

(a) factors, the court rejected the description of the offense set forth in the PSR. See

J.A. 510 (“[T]he statement of the offense in the presentence report is not correct and at no

time did Mr. George intend to injure or otherwise harm Ms. Doolittle.”). The court stated

its view that “Mr. George did not lift Ms. Doolittle out from under the backseat and slam

her down face-first on the driveway.” J.A. 510. Instead, the court found it “obvious” from

the surveillance video that George “lost his grip” on Doolittle and that Doolittle then fell

to the ground either because of “the force with which [George] pulled her out of the car, or

perhaps because of her inebriated condition she was unable to keep her balance and fell

forward.” J.A. 510–11. According to the court, the incident was “almost accidental . . .

not quite but almost.” J.A. 511. In the court’s view, George’s actions led to as “close to

an accidental injury . . . as you can get and still wind up violating that statute.” J.A. 515.

6 As part of its analysis of the § 3553(a) factors, the court noted that George had been

a law-abiding citizen leading up to his arrest, he had already suffered by losing his job,

police pension, and legal rights to bear arms and vote, he would be required to pay

$20,492.92 in restitution, and he endured a lengthy delay awaiting prosecution while on

bond. The court characterized George as “basically a subject of the government and not a

citizen anymore.” J.A. 512–13. The court reasoned that George’s behavior under

supervision reflected his “good character” and that the delay in proceedings reinforced that

there is “little need to do anything to deter him or anyone else employed as a police officer

from committing crimes.” J.A. 513–14. Distinguishing George’s conduct from merely

one other case, which involved intentional, extremely violent, and widely publicized police

brutality, the court stated that the difference between the cases was “startling.” J.A. 511

(citing Koon v. United States,

(1996)). In sum, the court found that the offense

level “greatly overstates the seriousness of the offense.” J.A. 512.

Based on the court’s view of the incident and its analysis of the § 3553(a) factors—

and over the government’s objection—the court sentenced George to a variance of four

years’ probation, adding that it would “com[e] out in the same place” based on its view of

the § 3553(a) factors even if its Guidelines calculation was “wrong.” J.A. 509–10. The

district court entered its judgment and accompanying statement of reasons, from which the

government appealed.

While this appeal was pending, George filed a pro se letter requesting early

termination of his probation. On June 11, 2021—three days after George’s letter was

docketed and before the government filed a response—the district court granted George’s

7 request for early termination, effective immediately. The district court’s order contained

no analysis or discussion of the § 3553(a) factors and simply granted the motion for good

cause shown.

II.

The government appeals on the basis of both procedural and substantive

reasonableness. We consider each in turn.

A.

“We review the reasonableness of a sentence under

(a) using an

abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,

or significantly outside the [Sentencing] Guidelines range.’” United States v. Nance,

(4th Cir. 2020) (quoting Gall v. United States,

(2007)).

Procedurally, we first determine “whether the district court committed any significant

procedural error, such as improperly calculating the Guidelines range, failing to consider

the § 3553(a) factors, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Gall,

. A sentence

is based on clearly erroneous facts, and is therefore procedurally unreasonable, when the

court’s explanation “runs counter to the weight of the evidence [at trial] and the jury’s

verdict.” United States v. Curry,

, 460–61 (4th Cir. 2006); accord United

States v. Hourihan,

(2d Cir. 1995) (concluding that a sentencing court’s

8 “decision to sentence based on its view of the evidence rather than the jury’s is reversible

error”); United States v. Weston,

(1st Cir. 1992).

The government maintains that the district court’s statement that George’s conduct

was “almost accidental” directly contradicts the jury’s implicit finding that George willfully

violated Doolittle’s constitutional rights. J.A. 511. Additionally, the government argues

that the district court’s finding that it was “obvious” from the surveillance video that

George “lost his grip” on Doolittle, which was George’s primary defense, is contrary to the

weight of the evidence presented at trial. J.A. 510–11. Both assertions are borne out in

the record.

The district court based its sentence on its view that George acted “almost

accidentally.” J.A. 511. Yet the jury convicted George of using objectively unreasonable

force against Doolittle, in violation of

, which requires the government to

show “that the defendant (1) willfully (2) deprived another individual of a constitutional

right (3) while acting under color of law.” United States v. Cowden,

(4th Cir. 2018) (emphasis added) (citation omitted). Willfulness, in turn, requires a

showing that “the defendant acted ‘with the particular purpose of violating a protected right

made definite by the rule of law or recklessly disregard[ed] the risk that [he] would do so.’”

(alterations in original) (quoting United States v. Mohr,

(4th Cir.

2003)). Because the jury found George guilty of violating § 242, the jury necessarily found

that he violated Doolittle’s constitutional rights either intentionally or with a reckless

disregard. See id.

9 In light of this mens rea standard, which the district court correctly stated in its

instructions to the jury, the district court’s view that George “almost accidentally” violated

Doolittle’s constitutional rights “runs counter to . . . the jury’s verdict” and is therefore

procedurally unreasonable. See Curry, 461 F.3d at 460–61. Relying on state law, George

contends that mental states associated with unlawful conduct constitute a “rising continuum

of blameworthiness” on which “specific intent to inflict the harm” is “more blameworthy”

than “reckless indifference to a harmful conduct.” See Manokey v. Waters,

(4th Cir. 2004) (quoting Williams v. State,

(Md. Ct. Spec. App.

1994)). Thus, in George’s view, the district court’s comment that George acted “almost

accidentally” means that the district court adopted the middle-ground view of George’s

mens rea—that George’s conduct amounted to recklessness—which would be consistent

with the jury’s verdict.

But the district court’s comment that George’s conduct led to as “close to an

accidental injury . . . as you can get and still wind up violating that statute” is difficult to

square with the jury’s finding that George either intentionally or recklessly violated

Doolittle’s rights. See J.A. 515. At a minimum, the jury’s finding that George acted

willfully means that his actions were “deliberate” rather than “unwitting conduct.” See

Bryan v. United States,

(1998). In espousing the view that George acted

“almost accidentally,” the district court based George’s sentence on its belief that George

acted unwittingly—or at least “almost” so—which is not consistent with the jury’s

willfulness finding.

10 But we need not rely wholly on this mens rea argument, because the district court’s

findings, when viewed as a whole, are also inconsistent with the weight of the evidence

presented at trial and impossible to reconcile with the facts implicitly adopted by the jury.

The district court’s comment that it is “obvious” from the surveillance video that George

“lost his grip” on Doolittle is clearly erroneous. See J.A. 510–11. On our viewing, the

video shows George pull Doolittle out of the patrol car and slam her on the pavement. It

simply does not support the district court’s view that George “lost his grip” on Doolittle.

Doolittle didn’t slip, and nor did George. The courts have already settled this exact

question of how such video evidence should be taken into account, in a § 1983 case: when

a “videotape quite clearly contradicts the version of the story” adopted by a lower court,

that court erred in failing to view “the facts in the light depicted by the videotape.” See

Scott v. Harris,

, 378–81 (2007); see also United States v. Kehoe,

(4th Cir. 2018) (citing Scott in a criminal case).

Furthermore, the district court’s view that George simply “lost his grip” on Doolittle

almost entirely mirrors George’s defense at trial, which the jury rejected in rendering its

guilty verdict on the use-of-force count. George argues that the jury could have rejected

both the government’s theory of the case (that George intentionally slammed Doolittle on

the pavement) and George’s theory (that he lost his grip on Doolittle, causing her to fall to

the pavement) in favor of a “middle-ground finding[].” Response Br. at 21. But the district

court did not advance a middle-ground view of the facts. Instead, it adopted George’s

theory in its entirety. The jury could not have adopted George’s theory while also rendering

a guilty verdict on the use-of-force count.

11 Nor is the court’s view of the evidence consistent with the remaining evidence

presented at trial. For example, George’s use-of-force trainer, Yoder, opined that the

surveillance video showed George “grab[]” Doolittle, “forcefully pull[] her from the

vehicle,” and “throw[] [her] to the ground.” J.A. 256. In Yoder’s view, this conduct “was

unnecessary and unreasonable.” J.A. 262. And George’s supervisor, Captain Gary Lee,

testified that George “basically threw [Doolittle] on the ground,” prompting him to refer

the matter for investigation. J.A. 141. The district court’s finding that “Mr. George did

not lift Ms. Doolittle out from under the backseat and slam her down face-first on the

driveway,” on which it based its 100% downward variance, runs counter to the weight of

the evidence at trial and the jury’s verdict. J.A. 510. If a lower court “bas[es] its decision

to vary downward in large part” on a view of the evidence that “contradict[s] the weight of

the evidence and the verdict,” then the sentence is procedurally unreasonable. Curry, 461

F.3d at 460–61. Such is the case here.

George also argues, in the alternative, that any procedural error is harmless, because

the court also based its downward variance on George’s “aberrant behavior” in this case

and otherwise sterling record as a police officer and law-abiding citizen. See Response Br.

at 26–27. However, a procedural error is harmless only when the error “did not have a

substantial and injurious effect or influence on the result.” United States v. Lynn,

(4th Cir. 2010) (cleaned up). Here, as noted above, the district court’s incorrect

view of the evidence colored nearly every aspect of its sentencing analysis, including its

analysis of the § 3553(a) factors and cannot be considered harmless.

12 B.

We typically consider the substantive reasonableness of a sentence only if the

sentence is procedurally sound. United States v. Blue,

(4th Cir. 2017);

United States v. Carter,

(4th Cir. 2009) (reviewing court does not reach

substantive reasonableness when it finds a significant procedural flaw). This Court has,

however, reviewed a sentence for substantive reasonableness even after finding procedural

deficiencies, and here we will conduct a substantive reasonableness analysis to address

issues that may arise on remand. See United States v. Engle,

(4th Cir.

2010) (vacating probation sentence as both procedurally and substantively unreasonable).

In considering the substantive reasonableness of an imposed sentence, “the court

will ‘take into account the totality of the circumstances, including the extent of any variance

from the Guidelines range.’” United States v. Evans,

(4th Cir. 2008)

(quoting Gall,

). The totality of the circumstances calculus “demands that

we proceed beyond a formalistic review of whether the district court recited and reviewed

the § 3553(a) factors” so that we may “ensure that the sentence caters to the individual

circumstances of a defendant, yet retains a semblance of consistency with similarly situated

defendants.” Id. at 167 (Gregory, J., concurring) (citing Gall, 552 U.S. at 49–50). “The

words ‘abuse of discretion’ cannot be a legal incantation invoked by appellate courts to

dispel meaningful substantive review of a district court’s sentence.” Id. (Gregory, J.,

concurring). We keep in mind the principles that “a major departure should be supported

by a more significant justification than a minor one.” Gall,

. And

13 “[s]entencing courts remain obligated not to give excessive weight to any relevant factor

and to impose a sentence which effects a fair and just result in light of the relevant facts

and law.” United States v. Howard,

(4th Cir. 2014) (cleaned up). We

proceed, then, to assess the district court’s rationale for the sentence and review its

application of the facts to the Guidelines and § 3553(a).

Performing that assessment, we find that the district court failed to sufficiently

justify its significant downward variance. In its reasoning, the district court relied heavily

on its view, counter to the weight of the evidence and George’s conviction, that the incident

was “almost accidental.” Through the prism of that impermissible belief, the district court

determined that the Guidelines range, reflecting the appropriate sentence for an officer that

willfully deprives someone of their constitutional rights, did not apply to George because

he was not in that category of offender. Other circuits have vacated sentences as

substantively unreasonable in instances in which the trial court took an impermissible view

of the facts, and that is the predominant reason for our holding as to substantive

reasonableness today. See, e.g., United States v. Hunt,

(6th Cir. 2008)

(holding a sentence substantively unreasonable because the court’s reasoning “rel[ied] on

facts directly inconsistent with those found by the jury beyond a reasonable doubt”).

Further, the district court gave excessive weight to its favorable perceptions of

George as a former police officer, and in turn the post-conviction consequences for George,

dismissing other considerations set forth in the Guidelines. However, “a defendant’s status

as a law enforcement officer is more akin to an aggravating as opposed to a mitigating

sentencing factor, as criminal conduct by a police officer constitutes an abuse of public

14 position.” United States v. Thames,

(5th Cir. 2000). Rather than

acknowledge an abuse of public trust, the court relied heavily on its positive perception of

George as a former law enforcement officer in its discussion of the first and second

§ 3553(a) factors, failing to significantly weigh the seriousness of the crime. As to the

goals of the § 3553(a) factors to “promote respect for the law,” “provide just punishment,”

“afford adequate deterrence”, and “protect the public,” the court spoke first and foremost

of the “total life changes to Mr. George,” enumerating collateral consequences, including

George’s loss of his job and pension, as sufficient deterrent to justify the variance. J.A.

512. But such outcomes are common in § 242 cases and do not justify this significant

variance to a probationary sentence. Indeed, “it is not unusual for a public official who is

convicted of using his governmental authority to violate a person’s rights to lose his or her

job and to be barred from future work in that field.” Koon,

. That reasoning

does not provide the “significant justification” necessary for such a substantial departure.

Gall,

.

By way of explanation for why its sentence did not violate the goal of avoiding

“unwarranted sentence disparities among defendants,” the district court did make an

attempt to distinguish George’s conduct from that of the officers in Koon, which it

determined to be a significant gulf. § 3553(a)(6). But that attempt to distinguish abandons

the principle that “[p]ublic officials convicted of violating § 242 have done more than

engage in serious criminal conduct; they have done so under the color of the law they have

sworn to uphold.” Id. at 111. By giving a cursory consideration of the need to deter public

officials from violating individual rights—with mention only of a notably violent case—

15 and focusing instead on George’s perceived low risk of future criminal conduct, the court

did not adequately weigh the 3553(a) factors. It thus reached a substantively unreasonable

sentence.

III.

Accordingly, for the foregoing reasons, we hereby vacate the sentence and remand

for resentencing before a different district judge.

VACATED AND REMANDED WITH INSTRUCTIONS

16