USCA4 Appeal: 22-4613 Doc: 23 Filed: 01/04/2024 Pg: 1 of 7

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4613

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID TRAVIS NANCE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:20-cr-00056-BO-1)

Submitted: October 12, 2023 Decided: January 4, 2024

Before WYNN and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, John L. Gibbons, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

This case returns to us after our remand to the district court for the resentencing of

David Travis Nance. Because the district court again failed to meaningfully address

Nance’s argument for a lower sentence, and because the error is not harmless, we vacate

the amended judgment and remand for resentencing before a different district judge.

I.

Nance pleaded guilty to possessing a firearm as a felon, in violation of

(g)(1). The district court calculated an advisory Sentencing Guidelines range of 37

to 46 months’ imprisonment and sentenced Nance to 46 months in prison. Nance appealed

and asserted that the district court had not meaningfully addressed his primary argument

for a below-Guidelines sentence. Specifically, Nance faulted the district court for not

addressing his argument based on his family responsibilities: he is the sole caretaker of his

six-year-old son and also looks after his elderly mother who is disabled. The Government

agreed with Nance and filed an unopposed motion to remand stating that a “resentencing

[was] necessary to allow the [district] court to meaningfully address [Nance’s] mitigating

arguments.” Mot. to Remand at 1, United States v. Nance, No. 22-4139 (4th Cir. Aug. 5,

2022), ECF No. 22. We granted the Government’s motion and remanded for resentencing.

On remand, the district court conducted a resentencing hearing and imposed the

same top-of-the-Guidelines 46-month sentence of imprisonment. In explaining its chosen

sentence, the court recited the

(a) factors, described Nance’s criminal

history, and observed that Nance’s offense was serious. The court added that it had

“considered” Nance’s arguments for a lower sentence but did not mention any of those

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arguments, including his argument based on his family responsibilities. J.A. 88. 1 The

court also imposed a three-year period of supervised release that includes a special

condition requiring Nance to support his dependents.

Nance now appeals from the amended judgment entered on remand. Nance asserts

that the district court again failed to address his argument for a lower sentence based on his

family responsibilities and that his sentence is thus procedurally unreasonable. The

Government contends, however, that the record establishes that the district court

considered and rejected Nance’s family responsibilities argument. And in any event, the

Government asserts that any procedural error was harmless.

II.

We review the procedural reasonableness of Nance’s sentence “under a deferential

abuse-of-discretion standard.” United States v. Lewis,

(4th Cir. 2021)

(internal quotation marks omitted). For a sentence to be procedurally reasonable, “a district

court must conduct an individualized assessment of the facts and arguments presented and

impose an appropriate sentence, and it must explain the sentence chosen.” United States v.

Nance,

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

Our precedents on procedural reasonableness require a district court to “address or

consider all non-frivolous reasons presented for imposing a different sentence and explain

why [it] has rejected those arguments.” United States v. Ross,

(4th Cir.

2019). A district court satisfies this requirement “if it, although somewhat briefly, outlines

1 Citations to “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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the defendant’s particular history and characteristics not merely in passing or after the fact,

but as part of its analysis of the statutory factors and in response to defense counsel’s

arguments for a [lower sentence].” United States v. Lozano,

(4th Cir.

2020) (internal quotation marks omitted). At bottom, the district court’s “explanation need

not be exhaustive or robotically tick through the § 3553(a) factors,” but it “must be

sufficient to satisfy [us] that the district court has considered the parties’ arguments and

has a reasoned basis for exercising its own legal decisionmaking authority.” United

States v. Friend,

(4th Cir. 2021) (cleaned up).

III.

A.

Our review of the record leads us to conclude that Nance’s sentence is procedurally

unreasonable because the district court did not address a non-frivolous argument Nance

made for imposing a different sentence and explain why it had rejected that argument. See

Ross,

. Indeed, the district court failed to address Nance’s primary

argument for a sentence below the Guidelines range: he is the sole caretaker of his young

son and also looks after his elderly mother who is disabled. Nance’s case is thus much like

United States v. Lewis, in which we vacated the sentence imposed based on the district

court’s failure to address the defendant’s mitigation argument related to “his role as a

working father.”

(4th Cir. 2020). Accordingly, we are satisfied that

Nance’s sentence must be vacated and that he must again be resentenced.

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B.

The Government’s appellate contentions do not convince us otherwise. While the

Government highlights the district court’s statement that it had “considered” Nance’s

arguments for a lower sentence, we have repeatedly held that a district court should explain

why it has rejected the defendant’s nonfrivolous arguments for a different sentence. 2 J.A.

88; e.g., Ross,

; United States v. Blue,

(4th Cir. 2017);

United States v. Slappy,

(4th Cir. 2017); United States v. Carter,

(4th Cir. 2009). Accordingly, the district court’s nonspecific statement—

without more—is not enough to pass our procedural reasonableness review.

The Government insists, however, that there is more here: the context of the

resentencing hearing and the district court’s interaction with Nance and his counsel

throughout the hearing. Starting with context, the Government asserts that “it would be

anomalous for this [c]ourt to conclude the district court once more failed to consider

[Nance’s] only argument, when doing so was the sole underlying reason for remand.” Br.

of Appellee 16. We disagree. In fact, the more anomalous result would be for this court

to sanction the district court’s failure to meaningfully address Nance’s argument for a lower

sentence despite our remand order instructing it to do so.

2 The Government relies heavily on our decision in United States v. Gibbs,

(4th Cir. 2018). But Gibbs addressed a revocation sentence, which we review much more deferentially than an original sentence.

. It also bears mentioning that the district court in Gibbs at least responded to some of the defendant’s arguments for a lower sentence, which is not the case here.

.

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Turning to the Government’s reliance on the district court’s interaction with Nance

and his counsel during the resentencing hearing, we are unpersuaded. After hearing

Nance’s allocution during which he emphasized his “family[] obligations” and his need to

“get home” to his young son and elderly mother, the district court simply responded,

“Okay.” J.A. 76. And after listening to defense counsel’s extensive argument for a lower

sentence, which tracked Nance’s allocution, the district court asked only, “Is that it?” J.A.

79. Those responses do not reflect that the district court meaningfully considered Nance’s

argument for a lower sentence. Cf. Blue,

(“Reviewing courts may . . . infer

that a sentencing court gave specific attention to a defendant’s argument for a downward

departure if the sentencing court engages counsel in a discussion about that argument.”).

As for the Government’s reliance on the district court’s imposition of the supervised

release condition requiring Nance to support his dependents, that routine condition cannot

bear the weight that the Government places on it. See U.S. Sentencing Guidelines Manual

§ 5D1.3(d)(1)(A), p.s. (2018) (recommending imposition of the support condition

whenever a defendant has a dependent). To be sure, the district court’s imposition of the

support condition establishes that the court was aware that Nance has a dependent. But the

condition does not address the crux of Nance’s argument—that he was already the sole

supporter of his young son and a within-Guidelines sentence would therefore have a severe

negative impact on the child. Nor does the requirement that Nance support his dependents

touch upon Nance’s care for his mother. At bottom, the Government’s arguments do not

convince us that Nance’s sentence is procedurally reasonable.

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We also reject the Government’s harmless error contention. To show harmless

error, the Government must prove that the district court’s error “did not have a substantial

and injurious effect or influence on the result” of the proceedings. Slappy,

(internal quotation marks omitted). We conclude that the Government has not met its

burden here because “it is plausible [that] the [district] court may have imposed a lower

sentence” had it meaningfully addressed Nance’s family responsibilities argument. United

States v. Patterson,

(4th Cir. 2020); see Lewis,

(“Given

the district court’s . . . imposition of a sentence at the top of the Guidelines range, a more

robust consideration of [the defendant’s] arguments and an adequate response to those

arguments may have resulted in a lesser sentence.”).

IV.

For those reasons, we vacate the amended judgment and remand for resentencing

before a different district judge. See United States v. McCall,

(4th

Cir. 2019) (discussing factors that we consider before reassigning case). 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

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