UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4010

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHERWIN LEE TANN, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Elizabeth City. Louise W. Flanagan, District Judge. (2:19-cr-00025-FL-1)

Submitted: May 4, 2023 Decided: June 9, 2023

Before GREGORY, Chief Judge, THACKER, Circuit Judge, and KEENAN, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: G. Alan DuBois, Federal Public Defender, Andrew DeSimone, Assistant 

Federal Public Defender, 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. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Sherwin Lee Tann, Jr., appeals the 24-month sentence imposed by the district court 

after it revoked his supervised release. We agree with Tann’s contention that the district 

court failed to adequately address his nonfrivolous arguments for a lesser sentence. 

Accordingly, we vacate his sentence and remand.

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

supervised release.” United States v. Patterson, 957 F.3d 426, 436 (4th Cir. 2020). We 

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

unreasonable.” Id. Before deciding “whether a revocation sentence is plainly 

unreasonable, [we] must first determine whether the sentence is procedurally or 

substantively unreasonable,” id., 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, 

788 F.3d 370, 373 (4th Cir. 2015) (brackets and internal quotation marks omitted). If a 

revocation sentence is both procedurally and substantively reasonable, we will not proceed 

to consider “whether the sentence is plainly unreasonable—that is, whether the 

unreasonableness is clear or obvious.” Patterson, 957 F.3d at 437 (internal quotation 

marks omitted).

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

explains the chosen sentence after considering the Chapter Seven policy statement range 

and the applicable [18 U.S.C.] § 3553(a) sentencing factors.” Id. at 436; see 18 U.S.C. 

§ 3583(e) (listing applicable factors). “[A]lthough the court need not be as detailed or 

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specific when imposing a revocation sentence as it must be when imposing a postconviction sentence, it still must provide a statement of reasons for the sentence imposed.” 

United States v. Slappy, 872 F.3d 202, 208 (4th Cir. 2017) (alteration and internal quotation 

marks omitted). If the court imposes a sentence within the policy statement range, “less 

explanation” is typically required. Patterson, 957 F.3d at 439 (internal quotation marks 

omitted).

“[A] district court, when imposing a revocation sentence, must address the parties’ 

nonfrivolous arguments in favor of a particular sentence, and if the court rejects those 

arguments, it must explain why in a detailed-enough manner that [we] can meaningfully 

consider the procedural reasonableness of the revocation sentence imposed.” Slappy, 872 

F.3d at 208. “[W]here a court entirely fails to mention a party’s nonfrivolous arguments 

in favor of a particular sentence, or where the court fails to provide at least some reason 

why those arguments are unpersuasive, even the relaxed requirements for revocation 

sentences are not satisfied.” Id. at 209.

The district court failed to explicitly address Tann’s two main arguments in 

mitigation—his employment history while on supervision and his desire to improve his 

relationship with his family. While we may be able to infer that the district court addressed 

this latter argument by recounting Tann’s offense conduct—assaulting the mother of his 

children—we cannot do so regarding the employment argument, as we “may not guess at 

the district court’s rationale, searching the record for statements by the Government or 

defense counsel or for any other clues that might explain a sentence.” United States v. 

Perez-Paz, 3 F.4th 120, 128 (4th Cir. 2021). The district court’s failure to address these 

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arguments is compounded by the court’s decision to vary upward and impose the statutory 

maximum sentence. See Slappy, 872 F.3d at 209. And under Slappy, we conclude that the 

sentence is plainly unreasonable. See id. at 210. We also reject the Government’s 

argument that the error here was harmless because “nothing in the record explicitly 

indicates that [the district court] would have imposed the same sentence regardless of 

whether it considered any specific mitigation factors.” Patterson, 957 F.3d at 440.

Accordingly, we vacate Tann’s sentence and remand for further proceedings.*

 We 

deny Tann’s motion to expedite as moot. 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

* Because we conclude that the sentence is procedurally unreasonable given the

court’s failure to address Tann’s nonfrivolous arguments, we decline to address Tann’s 

additional arguments that the court committed further procedural error by referring to his 

arrest record and dismissed charges and in considering the amount of credit Tann would 

receive for his pretrial detention.

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