United States v. Robbie Converse

Court Case Details
Court Case Opinion




No. 14-4163


Plaintiff - Appellee,



Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:08-cr-00116-JRS-1)

Submitted: August 26, 2014

Decided: September 9, 2014

Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Robert J. Wagner, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Michael R. Gill, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.


Robbie Joshua Converse appeals the twenty-seven month

sentence imposed upon revocation of his term of supervised

release. On appeal, Converse argues that his sentence is

plainly procedurally unreasonable because the district court

failed to provide an adequate explanation for its chosen



The Government concedes that the district court’s

explanation was inadequate and that therefore the court erred,

but argues that the error was harmless. We have fully

considered the Government’s contentions and are unable to

conclude that the absence of any explanation whatsoever for the

court’s chosen sentence was harmless in this case. Accordingly,

we vacate the judgment and remand for resentencing.

Procedural sentencing error, including a failure to

adequately explain the chosen sentence, is subject to review for

harmless error. Lynn, 592 F.3d at 576. “Under that standard,

the government may avoid reversal only if it demonstrates that

the error did not have a substantial and injurious effect or

influence on the result,” such that we “can say with fair

assurance that the district court’s explicit consideration of


Converse preserved his challenge to the adequacy of the

district court’s explanation “[b]y drawing arguments from [18
U.S.C.] § 3553 [(2012)] for a sentence different than the one
ultimately imposed” by the district court. United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010).


the defendant’s arguments would not have affected the sentence

imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th

Cir. 2010) (internal quotation marks and alterations omitted);

see United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006)

(noting that government bears burden to establish harmless

error). Remand is appropriate when the absence of an

explanation prevents us from “determin[ing] why the district

court deemed the sentence it imposed appropriate” or “produce[s]

a record insufficient to permit even . . . routine review for

substantive reasonableness.” Lynn, 592 F.3d at 582 (internal

quotation marks omitted).

We find the Government’s arguments unavailing. First,

we conclude that the district court’s adoption of the parties’

requests for recommendations as to drug treatment and prison

location did not satisfy the court’s obligation to explain its

chosen sentence. United States v. Thompson, 595 F.3d 544, 547

(4th Cir. 2010) (acknowledging that “in some cases, a district

court’s reasons for imposing a within-range sentence may be

clear from context,” but concluding that “those other statements

must actually relate to the imposed sentence, not some distinct,

penological or administrative question”). Nor does the fact

that the court made those recommendations mean that it also

considered the parties’ arguments for variant sentences.


Second, and contrary to the Government’s suggestion,

our precedents make clear that district courts are not exempted

from the explanation requirement when they reject a motion for a

variant sentence in favor of a sentence within the advisory

policy statement range. Rather, the Government’s and Converse’s

arguments “for imposing a different sentence than that set forth

in the advisory Guidelines” established the court’s duty to

“address the part[ies’] arguments and explain why [it] has

rejected those arguments.” United States v. Carter, 564 F.3d

325, 328 (4th Cir. 2009).

Third, we reject the Government’s contention that the

lack of complexity of the parties’ arguments and the apparent

egregiousness of Converse’s violations render the court’s

failure to offer any explanation at all for its chosen sentence

harmless. Both parties

thought Converse’s circumstances

sufficiently unique to urge upon the district court imposition

of a variant sentence from the advisory policy statement range.

Moreover, while the district court could have explained on the

record that it had considered and rejected Converse’s claims of

sincere remorse and specifically found that his violations were

egregious, it did not do so, and we decline to speculate on the

reasons for the court’s sentence. Id. at 329-30 (“[A]n

appellate court may not guess at the district court’s



The district court’s explanation of its revocation

sentence need not have been extensive or exhaustive, but the

omission of any statement of reasons for its actions cannot


Accordingly, being mindful that a sufficient

explanation is necessary “to promote the perception of fair

sentencing” and “to allow for meaningful appellate review,”

Gall v. United States, 552 U.S. 38, 50 (2007), we vacate the

judgment and remand for resentencing. In so ordering, of

course, we express no view as to the substantive reasonableness

of the vacated sentence. 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.



Referenced Cases