UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4397

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KELVIN JAMILLE REEVES, a/k/a Knowledge,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Bruce H. Hendricks, District Judge. (6:11-cr-02026-BHH-9)

Submitted: November 19, 2021 Decided: December 8, 2021

Before WILKINSON, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. M. Rhett DeHart, Acting United States Attorney, Columbia, South Carolina, Justin W. Holloway, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kelvin Jamille Reeves appeals the 12-month term of imprisonment imposed upon

the revocation of his supervised release. Reeves contends that the district court committed

two reversible procedural errors: failing to address his nonfrivolous mitigation arguments,

and failing to orally impose all discretionary conditions of supervised release contained in

the written judgment, in violation of United States v. Rogers,

(4th Cir. 2020).

Finding reversible error in the district court’s explanation of the sentence, we vacate and

remand for resentencing.

“A district court has broad discretion when imposing a sentence upon revocation of

supervised release.” United States v. Patterson,

, 436 (4th Cir. 2020). “We

will affirm a revocation sentence if it is within the statutory maximum and is not plainly

unreasonable.” United States v. Slappy,

(4th Cir. 2017) (internal

quotation marks omitted). To determine whether a revocation sentence is plainly

unreasonable, we first determine whether the sentence is procedurally or substantively

unreasonable, evaluating “the same procedural and substantive considerations that guide

our review of original sentences” but taking “a more deferential appellate posture than we

do when reviewing original sentences.” United States v. Padgett,

(4th

Cir. 2015) (alteration and internal quotation marks omitted).

“A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable

(a) factors.” United

States v. Coston,

, 297 (4th Cir. 2020) (internal quotation marks omitted),

2 cert. denied,

(2021); see

(e) (listing sentencing factors

applicable to revocation proceedings). “A 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.” United States v.

Thompson,

(4th Cir. 2010) (internal quotation marks omitted). In doing

so, the district court must, at a bare minimum, explain the sentence sufficiently to permit

meaningful appellate review and provide “assurance that the court considered any

potentially meritorious arguments raised by [the defendant] with regard to his sentencing.”

United States v. Gibbs,

(4th Cir. 2018) (alterations and internal quotation

marks omitted); see United States v. Patterson,

, 440 (4th Cir. 2020)

(“Although that is a lower bar, the record must reflect some affirmation that the court

considered the arguments in mitigation made by a defendant.”).

Here, the district court neither addressed nor acknowledged Reeves’ mitigation

arguments. The court generally referenced the policy statements in Chapter Seven of the

U.S. Sentencing Guidelines Manual and the statutory factors under

(a)

and

(e). However, the court neither provided an individualized

explanation for the sentence it selected nor expressly or implicitly addressed Reeves’

specific mitigation points. See United States v. Carter,

(4th Cir. 2009);

cf. United States v. Ross,

(4th Cir. 2019) (“[T]he district court cannot

meet its responsibility through broadly referring to the § 3553(a) factors in lieu of

addressing the parties’ non-frivolous arguments”).

3 We decline the Government’s invitation to infer the court’s consideration of Reeves’

arguments from the hearing as a whole, as the “district court’s reasons for” rejecting

Reeves’ arguments are not “clear from context.” See Thompson,

. The

court’s off-the-record conference with the probation officer and its receipt of statements

and testimony after imposing sentence have no apparent connection to Reeves’ specific

arguments regarding his sobriety, employment, and rehabilitative programming. Likewise,

although a court’s tailoring of a sentence to a defendant’s individual characteristics may

provide evidence that the court considered relevant § 3553(a) factors, see United States v.

Nance,

, 213 (4th Cir.), cert. denied,

(2020), the special

conditions of supervised release imposed by the district court lack a sufficient nexus to

Reeves’ mitigation arguments to give rise to an inference that the court accounted for those

arguments when determining the sentence. Likewise, the district court’s announcement of

an alternative variant sentence, standing alone, does not establish whether, or how, the

court considered Reeves’ mitigation arguments, falling short of the requirements for

meaningful appellate review. We therefore conclude that the record provides inadequate

assurance that the district court, in fact, considered the mitigation arguments proffered by

Reeves and his counsel. The district court’s “failure to so much as mention [Reeves’]

arguments,” which violated our established minimum procedural requirements, renders the

sentence plainly unreasonable. Patterson, 957 F.3d at 440; see also Slappy,

(explaining that sentence is “plainly unreasonable” when “it runs afoul of clearly

settled law” (alteration and internal quotation marks omitted)).

4 Of course, we will affirm a plainly unreasonable revocation sentence if we

determine that the error is harmless. Slappy,

; see United States v. Lynn,

(4th Cir. 2010) (explaining that defendant preserves sufficiency-of-

explanation challenge by drawing on § 3553(a) factors to argue for sentence different from

that imposed). A procedural sentencing error is harmless if it “did not have a substantial

and injurious effect or influence on the result.” Patterson, 957 F.3d at 440 (internal

quotation marks omitted). Because, on our review of the record, it remains “plausible that

[the court] might have imposed a lower revocation sentence” had it expressly considered

Reeves’ mitigation arguments, we conclude that the error is not harmless. See Slappy,

.

Accordingly, we vacate the district court’s judgment and remand for resentencing. ∗

We grant Reeves’ unopposed motion to expedite decision in this appeal. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED

∗ In light of our resolution of this claim, we decline to resolve Reeves’ remaining argument that specific discrepancies in the discretionary conditions of supervised release imposed orally and included in the written judgment violate Rogers. 5