**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 12**  **- 4308** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. ALVIN STALLINS , Defendant

- Appellant
.

Appeal from the United States District Court for the Eastern District of Virginia , at Norfolk
. Raymond A. Jackson , District Judge. ( 2:03

- cr - 00021

- RAJ

- TEM

- 1 )
Argued : March 22, 2013 Decided: April 5, 2013

Before TRAXLER, Chief Judge, and MOTZ and WYNN , Circuit Judges.

Vacated and remanded by un published per curiam opinion
.

**ARGUED:** Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Michael F. Murray, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. **ON BRIEF:** Michael S. Nachmanoff, Fe deral Public Defender, Alexandria, Virginia, Richard J. Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, William D. Muhr, As sistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.2 Unpublished opinions are not binding precedent in this circuit.3 PER CURIAM: Alvin Stallins appeals a 36

- month sentence, imposed following revocatio n of his supervised release. For the reasons that follow, we vacate and remand for resentencing.

I. In April 2003, Stallins pled guilty to one count of possession with intent to distribute cocaine base and one count of poss ession of a firearm as a felon
. He received a sentence of 121

- months’ imprisonment, and five years of supervised release. In July 2008, the district court reduced Stallins’s sentence to 100

- months’ imprisonment pursuant to 18 U.S.C.
§ 3582(c). In October 2009, the court again reduce d Stallins’s sentence, this time to 76

- months’ imprisonment, pursuant to the Government’s substantial assistance motion. Later that month, Stallins was released from prison and began his five

- ye ar term of supervised release. In January 2011, Stallins’s probation officer filed a petition seeking revocation of Stallins’s supervised release. The petition listed multiple violations of the supervised release conditions, including Stallins’s recent arrest for possession of cocaine with intent to distribute an d several firearms offenses. The probation officer later filed addenda to4 the petition , stating that the firearm charges had been nol le prossed and that Stallins had pled guilty to the cocaine charge and received a sentence of seven - years’ imprisonment. On March 26, 2012, the district court held a supervised release violation hearing. Stallins admitted to multiple violations of the conditions of his supervised release, including his possession with intent to distribute cocaine, his failure to submit mont hly supervised release reports, his failure to submit to drug testing, and his possession of cocaine based on positive drug tests. Based on those admissions, the court found Stallins in violation of his supervised release conditions, and revoked his super vised release. The Government asked the court to sentence Stallins to the statutory maximum 36

- months’ imprisonment because his cocaine violation was identical to the conduct underlying his original federal conviction for which he had been serving a term of supervised release. Stallins maintained that he did not actually receive a significant benefit from his sentence reductions because they came so late in his sentence, that his state court sentence was particularly harsh, and that the birth of hi s son had “profoundly changed his attitude.” On these grounds, he requested a “short” revocation sentence running concurrent to the state court sentence
. Neither the court nor any party referred to the Guidelines Manual policy statement and5 table suggest ing a 24

- to 30

- months’ imprisonment for commission of a grade A probation violation, like Stallins’s , by a person with his criminal history category (IV). See U.S.S .G. § 7B1.4.
T he court sentenced Stallins to the statutory maximum of 36

- months’ imprison ment to run consecutive to his state court sentence. The court chastised Stallins , finding it “inexcusable that you are back in here again.” The court emphasized that the law had not mandated any sentence reduction, rather the reductions were “purely the Judge .
. . trust ing you and giving you a chance
. ” I nstead of taking advantage of that opportunity, Stallins had started “sneaking around dealing some drugs again
. ”

II. We affirm a sentence imposed after revocation of supervised release unless that sen tence is plainly unreasonable. See United States v. Crudup , 461 F.3d 433, 439 (4th Cir. 2006). Stallins maintains that the sentence he received is plainly procedurally unreasonable because the court failed to consider the applicable policy statement rang e.
A district court “need not be as detailed or specific when imposing a revocation sentence as it must be when impo sing a post

- conviction sentence. ” United States v. Thompson , 595 F.3d 544, 547 (4th Cir. 2010) . But it “ must consider the policy
statements contained in Chapter 7, including the policy6 statement range, as ‘helpful assistance,’ and must also consider
t he applicable § 3553(a) factors. ” United States v. Moulden , 478 F.3d 652, 656 (4th Cir. 2007) (emphasis added); see also Thompson , 59 5 F.3d at 547. Here, the district court may well have (at least implicitly ) consider ed many of the applicable § 3553(a) factors
. But it failed to indicate any consider ation of the policy statement range for revocation sentences. The Government admits th at the court did not calculate or recite the policy statement range, but argues that it considered the range because “the normal practice ” in that district “ is for the probation officer to provide the district court and the parties with a worksheet setting forth the guideline range.” However, the record contains no such worksheet in this case
. N or would the mere presence of a worksheet in the record demonstrate that the court actually considered the policy statement range
. Moreover , nothing in the hearing transcript even implies, let alone demonstrates, that the court considered Stallins’s policy statement range during sentencing. * Facing such a dearth of evidence, we cannot presume that the court did consider the

* For these reasons, we deny the Government’s motion to file a supplemental joint appendix containing a supervised release violation worksheet purportedly given to the district judge at sentencing but not filed with the clerk of court.7 policy statement range. Therefore , we conclude that Stallins’s sentence was procedurally unreasonable. “For a sentence to be plainly unreasonable, .
. . it must run afoul of clearly settled law.” Thompson , 595 F.3d at 548. In this case, the mandate in Moulden that a sentencing court

mu st consider the C hapter 7 policy statement range has been clearly settled since 2007. Because Stallins’s sentence violated Moulden ’s clear language, it was plainly unreasonable.
T he Government suggests , however, that any error was ultimately harmless bec ause the district court’s explicit consideration of Stallins’s policy statement range would not have affected his sentence. The Government maintains the court’s comments at sentencing “made plain that [it] was finished with granting leniency to the defend ant,” and that the court ultimately “articulated sufficient reasons for giving the defendant a 36

- month revocation sentence.” Although the Government’s contentions are not without merit, we cannot conclude that the error here was harmless. Under Crudup , t he district court is charged with providing an individualized explanation for its decision to deviate from the policy statement range. 461 F.3d at 439; see also Moulden , 478 F.3d at 657. A sentencing court’s indication

-- however clear

-- that it is “ fin ished ” granting a defendant sentencing reductions does not in itself dem onstrate that the court intends8 to deviate upward from the policy statement range. Similarly , that the court articulated reasons sufficient to support a 36

- month sentence does not , st anding alone , provide “fair assurance” that the court would have given the same sentence if it had considered the policy statement range. See United States

v. Boulware , 604 F.3d 832, 838 (4th Cir. 2010)
. Rather , h ad the court explicitly considered Stallins’s policy statement range, “it could conceivably have given him a lower sentence.” Thompson , 595 F.3d at 548. Accordingly, we must vacate and remand for resentencing.

III. For the foregoing reasons, we vacate Stallins’s sentence and remand to the district court for resentencing.

VACATED AND REMANDED