United States v. Devin Means, JR., 4th Cir. (2014)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 13-4785
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
DEVIN ROCHARD
Rochard Means,
MEANS,
JR.,
a/k/a
Little
D,
a/k/a
Devin
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:07-cr-01467-HMH-5)
Submitted:
April 24, 2014
Before SHEDD and

Circuit Judge.
DUNCAN,
Decided:
Circuit
Judges,
and
May 2, 2014
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. William N. Nettles, United States
Attorney, William J. Watkins, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Devin
Rochard
Means,
Jr.,
appeals
from
his
twenty-four-month sentence imposed pursuant to the revocation of

his
supervised
release.
On
appeal,
Means
avers
that
his
sentence was plainly unreasonable because the district court did

not give individualized reasoning for the chosen sentence. *
We
affirm.
We will affirm a sentence imposed after revocation of
supervised
release
maximum
and
not
Crudup,
461
F.3d
review,
we
if
it
is
within
the
plainly
unreasonable.
433,
(4th
follow
437
generally
Cir.
the
applicable
statutory
United
States v.
2006).
In
procedural
and
making
our
substantive
considerations that [are] employ[ed] in [the] review of original

sentences, . . . with some necessary modifications to take into
account
the
unique
sentences.
Id.
procedurally
or
at
nature
of
438-39.
substantively
supervised
release
Only
sentence
if
unreasonable
whether the sentence is plainly unreasonable.
will
Id.
revocation
we
is
found
decide
(emphasis
in original).
*
Means counsel initially filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), concluding that there
were no meritorious issues for appeal. However, when our review
of the record pursuant to Anders revealed non-frivolous claims,
we ordered counsel to file a merits brief. Means merits brief
challenges only the adequacy of the courts explanation of
sentence and, therefore, waives all other claims.
When
imposing
sentence,
the
district
court
must
provide individualized reasoning:

The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties arguments and has a reasoned basis for
exercising his own legal decisionmaking authority
. . . .
Where
the
defendant
.
.
.
presents
nonfrivolous reasons for imposing a different sentence
than that set forth in the advisory Guidelines, a
district judge should address the partys arguments
and explain why he has rejected those arguments.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
The
Carter rationale applies to revocation hearings; however, [a]

court
need
revocation
not
be
as
sentence
detailed
as
it
post-conviction sentence.
544,
547-48
(4th
Cir.
or
must
specific
be
when
when
imposing
imposing
a
a
United States v. Thompson, 595 F.3d
2010)
(noting
that
district
courts
reasoning may be clear from context and the courts statements

throughout the sentencing hearing may be considered).
In fact,
in
may
case
hard-pressed
of
supervised
to
find
any
release
revocation,
explanation
for
we
be
within-range,
revocation sentences insufficient given the amount of deference

.
afford[ed
to]
district
courts
when
imposing
these
sentences; but a district court may not simply impose sentence

without giving any indication of its reasons for doing so.
Id.
(emphasis in original).
[I]f a party repeats on appeal a claim of procedural
sentencing error . . . [that] it has made before the district
3
court, [this court] review[s] for abuse of discretion and will

reverse
unless
it
concludes
that
the
error
was
harmless.
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
For
instance,
the
if
an
aggrieved
party
sufficiently
alerts
district court of its responsibility to render an individualized

explanation
by
drawing
(2012)
sentence
for
arguments
from
different
18
than
U.S.C.
the
one
3553(a)
ultimately
imposed, the party sufficiently preserves its claim.

578.
Id. at
However, we review unpreserved non-structural sentencing
errors for plain error.
Id. at 57677.
To establish plain
error, a defendant must show that an error occurred, that the

error was plain, and that the error affected his substantial
rights.
United States v. Aidoo, 670 F.3d 600, 611 (4th Cir.
2012), cert. denied, 133 S. Ct. 627 (2012).
Finally, plain
errors should only be corrected where not doing so would result

in a miscarriage of justice.
United States v. Robinson, 627
F.3d 941, 954 (4th Cir. 2010).
Because counsel did not request
sentence
below
the
Guidelines
range,
we
review
for
plain
sentence
falls
error.
Here,
within
the
imprisonment.
there
is
applicable
18
the
Chapter
dispute
statutory
U.S.C.
3583(e)(3) (2012).
objection
no
that
the
maximum
3559(a)(1)
of
five
years
18
U.S.C.
(2012);
The district court also adopted without

7
advisory
4
policy
statement
range
of
twenty-four to thirty months imprisonment and heard argument

from counsel and allocution from Means.
reveals
that
sentence.
the
Such
Thompson,
595
court
was
F.3d
offered
error,
at
548
no
and
However, the record
reasoning
the
(noting
error
that
for
was
the
its
chosen
plain.
See
requirement
to
provide a minimal statement of reasons for the sentence imposed

in revocation proceedings is clearly settled).
However, we conclude that the error did not affect
Means substantial rights.
Means was sentenced to the bottom of
the policy statement range, his counsel did not request a lower
sentence, and a district court has broad discretion to impose
sentence.
imposed
Means
a
lower
explanation,
argument.
and
does
not
argue
sentence
had
nothing
in
it
the
that
the
court
provided
record
would
more
supports
have
thorough
such
an
See United States v. Knight, 606 F.3d 171, 178 (4th
Cir. 2010) (explaining that, to demonstrate that a sentencing

error
affected
defendants
substantial
rights,
the
defendant
must show that he would have received a lower sentence had the
error not occurred).
In addition, there was no miscarriage of justice in
this case.
it
had
Although the courts explanation did not reveal that
considered
the
relevant
3553(a)
factors,
the
court
explicitly adopted the probation officers Guidelines range as

calculated in his violation report, and the report addressed the
5
facts
and
circumstances
underlying
listened
criminal
to
of
Means
conduct.
counsels
violation,
Moreover,
argument,
as
self-reporting that Means requested.
as
the
the
well
court
court
as
his
clearly
permitted
the
Given that counsel did not
request a lower sentence, the court acted well within the bounds
of justice by imposing a presumptively reasonable sentence at
the low end of the advisory Guidelines range.
United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) ([W]e may
and do treat on appeal a district courts decision to impose a
sentence
within
reasonable.).
the
As
such,
Guidelines
we
range
decline
to
as
presumptively
correct
the
district
courts error.
Accordingly, Means sentence is affirmed.
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

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

April 24, 2014

Before SHEDD and

Affirmed by unpublished per curiam opinion.

Lora E. Collins, Assistant Federal Public Defender, Greenville,

Unpublished opinions are not binding precedent in this circuit.

twenty-four-month sentence imposed pursuant to the revocation of

sentence was plainly unreasonable because the district court did

considerations that [are] employ[ed] in [the] review of original

whether the sentence is plainly unreasonable.

Means counsel initially filed a brief pursuant to

provide individualized reasoning:

Carter rationale applies to revocation hearings; however, [a]

United States v. Thompson, 595 F.3d

reasoning may be clear from context and the courts statements

revocation sentences insufficient given the amount of deference

sentences; but a district court may not simply impose sentence

court, [this court] review[s] for abuse of discretion and will

district court of its responsibility to render an individualized

imposed, the party sufficiently preserves its claim.

However, we review unpreserved non-structural sentencing

errors for plain error.

error, a defendant must show that an error occurred, that the

United States v. Aidoo, 670 F.3d 600, 611 (4th Cir.

2012), cert. denied, 133 S. Ct. 627 (2012).

errors should only be corrected where not doing so would result

United States v. Robinson, 627

F.3d 941, 954 (4th Cir. 2010).

Because counsel did not request

The district court also adopted without

twenty-four to thirty months imprisonment and heard argument

However, the record

provide a minimal statement of reasons for the sentence imposed

Means was sentenced to the bottom of

See United States v. Knight, 606 F.3d 171, 178 (4th

Cir. 2010) (explaining that, to demonstrate that a sentencing

Although the courts explanation did not reveal that

explicitly adopted the probation officers Guidelines range as

self-reporting that Means requested.

Given that counsel did not

argument would not aid the decisional process.

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