UNPUBLISHED

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Vacated and remanded by unpublished per curiam opinion.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, Federal 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, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Norfolk, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Alvin Stallins appeals a 36-month sentence, imposed 

following revocation 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 possession 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 reduced 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-year 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 and several 

firearms offenses. The probation officer later filed addenda to 
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the petition, stating that the firearm charges had been nolle 

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 monthly 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 supervised 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 his 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 and 
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table suggesting 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.

The court sentenced Stallins to the statutory maximum of 

36-months’ imprisonment 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 . . . trusting you and giving 

you a chance.” Instead 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 sentence 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 range.

A district court “need not be as detailed or specific when 

imposing a revocation sentence as it must be when imposing 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 policy 
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statement range, as ‘helpful assistance,’ and must also consider 

the applicable § 3553(a) factors.” United States v. Moulden, 

478 F.3d 652, 656 (4th Cir. 2007) (emphasis added); see also

Thompson, 595 F.3d at 547.

Here, the district court may well have (at least 

implicitly) considered many of the applicable § 3553(a) factors. 

But it failed to indicate any consideration of the policy 

statement range for revocation sentences. The Government admits 

that 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. Nor 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.
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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 

must consider the Chapter 7 policy statement range has been 

clearly settled since 2007. Because Stallins’s sentence 

violated Moulden’s clear language, it was plainly unreasonable.

The Government suggests, however, that any error was 

ultimately harmless because 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 defendant,” 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, the 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 “finished” granting a defendant sentencing 

reductions does not in itself demonstrate that the court intends
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to deviate upward from the policy statement range. Similarly, 

that the court articulated reasons sufficient to support a 36-

month sentence does not, standing 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, had 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