UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4762

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ONREY TOWNES,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior 

District Judge. (5:11-cr-00213-F-4)

Argued: October 29, 2015 Decided: November 16, 2015

Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion. Judge 

Niemeyer wrote a dissenting opinion. 

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Kristine L. 

Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal 

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Onrey Townes appeals the twenty-one-month sentence the 

district court imposed upon the revocation of his supervised 

release. Townes challenges the sentence as procedurally 

unreasonable, arguing that the district court committed plain 

error in imposing the sentence absent appropriate explanation. 

For the reasons that follow, we vacate the judgment and remand 

for resentencing. 

I.

Townes first appeared before the district court for 

sentencing on April 24, 2012, after pleading guilty to

possessing a stolen firearm and aiding and abetting in violation 

of 18 U.S.C. §§ 2, 922(j), 924. In accordance with the terms of 

his plea agreement, the district court sentenced Townes to 

twelve months and one day in prison and three years of 

supervised release. Townes began his term of supervised release 

on July 3, 2012.

On March 26, 2014, United States Probation Officer Dewayne 

Smith petitioned for the revocation of Townes’s supervised 

release, asserting that Townes had violated the terms of his 

supervised release in two respects. First, Smith alleged that 

Townes had engaged in recent criminal conduct. Smith explained 

that, during the early morning hours of March 15, 2014, Townes 

entered a home through a bathroom window, woke a young female 
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resident, and fled when the girl called for her parents. Smith 

also noted that Townes attempted to gain access to a second 

residence minutes later and that Townes only abandoned his 

efforts when one of the people inside the home discovered him. 

In response to these incidents, the Wilson County Police 

Department charged Townes with felony first degree burglary and 

attempted breaking and entering. Second, Smith reported that 

Townes had violated the terms of his supervised release by 

missing three mental health appointments. 

The district court held a hearing on the petition for 

revocation on September 29, 2014. During the hearing, Townes 

neither admitted nor denied the alleged criminal activity. As 

to the allegations regarding his failure to participate in a 

mental health program as directed, Townes conceded that his 

absences violated the terms of his supervised release. Townes

emphasized, however, that his absences were not the result of

disinterest in mental health support. Townes explained that 

each absence was due to incomplete information or scheduling

conflicts and emphasized his desire for future mental health 

counseling. 

The Government made a proffer as to the purported criminal 

activity, eliciting testimony from the police officers who had

responded to the incidents. After hearing from both officers, 

the district court declared that it found as a matter of fact 
5

that Townes had violated the terms of his supervised release by 

engaging in criminal conduct—both burglary and attempted 

breaking and entering—and by failing to participate in a mental 

health program as directed. The district court then explained 

that it had “considered the policy statements on revocation 

contained in Chapter Seven of the Sentencing Guidelines as well 

as [the] relevant factors listed in 18 United States Code 

3553(a).” J.A. 21. Prior to imposing the sentence, the 

district court afforded both parties an opportunity to address 

the court. 

Townes’s attorney argued first and offered the following

factors in mitigation of Townes’s conduct: (1) Townes’s youth;

(2) his documented struggles with bipolar disorder and 

schizophrenia; (3) his recent engagement and commitment to 

helping raise his two three-month-old sons; (4) his abstention 

from drug use; (5) his work history and current job prospects;

and (6) his plans to earn his GED and commercial driver’s 

license. Defense counsel concluded by asking the district court 

for a sentence below the advisory range provided under the U.S.

Sentencing Guidelines Manual’s policy table applicable to 

revocations. The district court did not explicitly address 

Townes’s arguments in favor of a below-the-guidelines sentence 

at that time. Instead, prior to seeking final comments from the 

Government, the district court explained that Townes’s conduct 
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constituted a “most serious violation” and explained that, 

because Townes fell within criminal history category II, 

Townes’s advisory range of imprisonment was fifteen to twentyone months.

The Government responded to Townes’s request for a sentence 

below the advisory range by arguing in support of an aboveguidelines twenty-four-month sentence—the applicable statutory 

maximum. As grounds for a sentence above the advisory range, 

the Government explained that, immediately after posting bond in 

Wilson County, Townes had returned to one of the subject 

residences and shouted threats at the victims. The Government 

also emphasized that Townes’s initial federal conviction was for 

the possession of a stolen firearm and that Townes had come into 

possession of the firearm following a 2010 residential break-in. 

In sum, the Government argued that Townes had failed to learn 

from his initial term of imprisonment and that his recent 

criminal conduct evidenced dangerous and escalating behavior. 

After both parties presented their arguments, the district 

court reasserted its finding that Townes had violated the terms 

of his supervised release. The district court then revoked 

Townes’s supervised release and imposed the sentence as follows:

After weighing all the factors, it’s ordered and 

adjudged that the supervision term heretofore granted 

be revoked. The Defendant is ordered committed to the 

custody of the Bureau of Prisons or its authorized 

representative for a period of 21 months. The court 
7

recommends that while incarcerated he receive mental 

health treatment and he participate in the intensive 

drug treatment program. 

J.A. 24-25. This timely appeal followed. 

II.

A.

A district court is afforded broad discretion when imposing 

a sentence upon the revocation of supervised release. United 

States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). A revocation 

sentence will be affirmed so long as “it is within the statutory 

maximum and is not ‘plainly unreasonable.’” Id. (quoting United 

States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006)). 

To determine if a sentence is plainly unreasonable, we 

conduct a two-step inquiry. See Crudup, 461 F.3d at 438-39. 

First, this Court must determine whether the sentence is

“unreasonable at all.” United States v. Thompson, 595 F.3d 544, 

546 (4th Cir. 2010). A sentence can be either procedurally or 

substantively unreasonable. Webb, 738 F.3d at 640. A sentence 

will be deemed procedurally unreasonable if the judge failed to 

consider the Chapter Seven policy statements or pertinent 18 

U.S.C. § 3553(a) sentencing factors or if the judge failed to 

“provide a statement of reasons for the sentence imposed.” 

Thompson, 595 F.3d at 547 (quoting United States v. Moulden, 478 

F.3d 652, 657 (4th Cir. 2007)); Crudup, 461 F.3d at 440. A 

revocation sentence is substantively unreasonable if the 
8

district court did not rely on a proper basis in rendering its 

sentence. Crudup, 461 F.3d at 440. 

Only if a sentence is procedurally or substantively 

unreasonable do we proceed to the second step: determining 

whether the sentence is “plainly unreasonable.” Id. at 439. A 

sentence is plainly unreasonable if it runs “afoul of clearly 

settled law.” Thompson, 595 F.3d at 548. 

B.

Townes challenges his revocation sentence as procedurally 

unreasonable. He contends that the district court committed 

plain procedural error when it failed to address his arguments 

in favor of a sentence below the advisory range and failed to 

explain why it imposed the sentence rendered. We agree.

While 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,” it must give some explanation or 

indication of its reasoning. See id. at 547. As this Court 

explained in Thompson, “to hold otherwise, district courts could 

effectively thwart appellate review of any within-range 

revocation sentences they impose.” Id. 

The Government argues that the district court shed 

sufficient light on its reasoning when it noted, prior to 

hearing argument from Townes’s counsel, that it “considered the 

policy statements on revocation contained in Chapter Seven of 
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the Sentencing Guidelines as well as relevant factors listed in 

18 United States Code 3553(a).” The Government further contends 

that, between the district court’s declaration that Townes’s 

conduct constituted a “most serious Grade A violation” and its 

recommendation that Townes receive mental health treatment while 

incarcerated, the district court adequately explained its

decision to deny Townes’s request for a sentence below the 

advisory range. 

We are unpersuaded by the Government’s contentions. Were 

we to agree with the Government, we would be reaching the type 

of “speculative conclusion” we cautioned against in Thompson. 

Id. Most assuredly, a district court is not required to 

“robotically tick through § 3553(a)’s every subsection.” 

Moulden, 478 F.3d at 657 (quoting, United States v. Johnson, 445 

F.3d 339, 345 (4th Cir. 2006)). However, by merely stating that

it had “weigh[ed] all the factors,” the district court left this 

Court to engage in wide-ranging speculation as to how the policy 

statements and § 3553(a) factors balanced in light of the

opposing arguments offered by defense counsel and the 

Government. This is not to suggest that the district court did 

not adequately take the parties’ arguments into consideration 

when formulating Townes’s sentence; rather, it means that

because a sufficient explanation is essential to the “perception 

of fair sentencing” and “meaningful appellate review,” Gall v. 
10

United States, 552 U.S. 38, 50 (2007), a revocation sentence 

cannot be deemed procedurally reasonable when this Court can 

only guess as to the district court’s actual reasoning. 

Notably, the Government conceded at oral argument that the 

explanation provided by the district court would not pass muster 

if this were a direct appeal from an original sentence. Given 

the paucity of reasoning explaining the sentence in this record, 

we find no support in our precedents for the manner in which the 

Government would parse the minimal burden on the district court 

to explain the reasons for its sentence. 

C.

Because we find the sentence procedurally unreasonable, we 

must now consider whether it was plainly so. Because this 

Circuit has clearly articulated that a district court is 

“obligat[ed] to provide some basis for appellate review when 

imposing a revocation sentence, however minimal that basis may 

be,” Thompson, 595 F.3d at 548-49, the district court’s failure 

to offer any explanation for imposing the top-of-the-guidelines 

sentence rendered, in light of counsel’s presentations, runs 

afoul of clear circuit precedent. Accordingly, we conclude that

the sentence is plainly unreasonable. 

D.

Finally, despite the Government’s arguments to the 

contrary, we are unable to conclude that the district court’s 
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failure to issue a reasoned sentence was harmless. “For a 

procedural sentencing error to be harmless, the government must 

prove that the error did not have a ‘substantial and injurious 

effect or influence on the result.’” Id. at 548 (quoting United 

States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)). While the 

Government argues that the mitigating evidence offered by 

Townes’s counsel was relatively weak in light of its evidence 

demonstrating escalating and dangerous behavior, we cannot 

presume that the district court would not have rendered a 

different sentence had it explicitly considered the arguments of 

Townes’s counsel. As an example, Townes’s counsel emphasized to 

the district court that Townes was “not a drug user” and had not 

produced a positive drug test throughout his time (more than 

eighteen months) on supervised release. Despite this evidence, 

the district court recommended that Townes undergo intensive 

drug treatment while incarcerated. Reflecting on this potential 

incongruity—and without any explanation to the contrary—it is 

reasonable to conclude that the district court entirely 

overlooked this non-frivolous argument offered in mitigation of 

Townes’s conduct. Because the district court did not adequately 

explain its basis for rendering the sentence chosen and Townes 

presented non-frivolous arguments that, if explicitly 

considered, could have resulted in a different sentence, we are 
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unable to find that the procedural sentencing error was 

harmless. 

III.

For the foregoing reasons, the judgment is vacated and the 

case is remanded to the district court for a new sentencing 

hearing. We deny Townes’s motions to file a pro se supplemental 

brief as moot. 

VACATED AND REMANDED
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NIEMEYER, Circuit Judge, dissenting:

After revoking Onrey Townes’ supervised release because he 

had committed two crimes, at least one of which was a “crime of 

violence,” and because he had failed to participate in mental 

health treatment, the district court imposed a sentence of 21 

months’ imprisonment, within the Sentencing Guidelines’ range. 

The majority opinion now vacates that sentence as plainly 

unreasonable because the district court did not adequately 

explain its reasons for imposing it. The majority concludes 

that, by not saying enough, the district court “thwart[ed]” our 

ability to review the sentence, leaving us to make a 

“speculative conclusion” about the reasons for it.

On this record, the majority opinion is unfathomable and 

leads only to needless procedural churning. As we have said, we 

should be “hard-pressed to find any explanation for withinrange, revocation sentences insufficient given the amount of 

deference we afford district courts when imposing these 

sentences.” United States v. Thompson, 595 F.3d 544, 547 (4th 

Cir. 2010) (emphasis added). Even so, on this record, we know 

exactly why the district court imposed the sentence. I would 

affirm.

As part of his sentence for possessing a stolen firearm and 

aiding and abetting, in violation of 18 U.S.C. §§ 922(j), 924, 

and 2, Townes was given a three-year term of supervised release, 
14

which included conditions that he not commit another crime and 

that he participate in a mental health treatment program. On 

the motion of Townes’ probation officer, the district court 

revoked Townes’ supervised release for violation of these 

conditions. The court found that Townes (1) committed “felony 

first degree burglary” of a residence; (2) committed another 

crime of “attempted breaking and entering of a building”; and 

(3) “fail[ed] to participate as directed by a probation officer 

in a mental health program.” The district court calculated the 

Sentencing Guidelines’ recommended range to be 15 to 21 months’ 

imprisonment.

Arguing for a downward departure from that range, Townes’ 

counsel pointed out:

Mr. Townes is 22 years old. He’s been living with his 

sister in Wilson. He’s engaged. He has two threemonth-old boys. He’s excited about being a father and 

as soon as he can get this behind him he wants to get 

married and help raise those children.

He was diagnosed with bipolar and schizophrenia when 

he was a child, Your Honor. That’s documented in his 

presentence report and he’s struggled with this for 

years.

He does want the court to know that he wants mental 

health counseling. That the reason he missed those 

appointments, it wasn’t because he did not want to go 

or because he did not feel that he needed it. He was 

-- Your Honor, he got confused.

Counsel also noted that Townes had been employed in some work, 

that he had other “job possibilities lined up,” and that he 

planned to “get his GED.”
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The government argued for an upward departure of 24 months’ 

imprisonment, pointing out:

[W]hen [Townes] bonded out on the state charge for the 

burglary[,] . . . he went back to the same victims’ 

house and shouted at them -- shouted threats at them 

from across the street.

I would like the court to also know that his federal 

conviction related to possession of stolen firearms as 

a result of a residential break-in.

It does not appear that his behavior has been deterred 

in the least. He had a break-in for which he was 

charged for the federal conviction and admitted to 

another break-in in Wilson County.

These two break-ins happened, you know, just minutes 

apart in Wilson, and we believe that he poses a danger

to the community and shows escalating behavior, bad 

behavior, criminal behavior by his actions on March 

the 15th.

The district court rejected each party’s request for a 

departure from the Guidelines’ recommended range, sentencing 

Townes to 21 months’ imprisonment, the top of the recommended 

range. The court explained:

The court has considered the policy statements on 

revocation contained in Chapter Seven of the 

Sentencing Guidelines as well as relevant factors 

listed in 18 United States Code 3553(a).

* * * 

Well, it’s a grade -- most serious grade violation is 

A.∗

 ∗ The Sentencing Guidelines provide that a Grade A violation 

involves “conduct constituting (A) a federal, state, or local 

offense punishable by a term of imprisonment exceeding one year 

that (i) is a crime of violence . . . .” U.S.S.G. 

(Continued)
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* * * 

Well, the court finds that he’s violated the terms of 

the judgment by criminal conduct as I’ve indicated, 

felony burglary and attempted break-in.

After weighing all the factors, it’s ordered and 

adjudged that the supervision term heretofore granted 

be revoked. The defendant is ordered committed to the 

custody of the Bureau of Prisons or its authorized 

representative for a period of 21 months.

The court recommends that while incarcerated [Townes] 

receive mental health treatment and he participate in 

the intensive drug treatment program.

It is difficult to conceive of what more the district court 

could have said in the context of this particular sentencing 

hearing. After hearing the evidence and the arguments, the 

court explained that Townes’ violation was the “most serious” 

recognized by the Sentencing Guidelines -- a Grade A 

violation -- and that Townes had a mental health problem that 

needed treatment, explicitly recommending that he receive 

treatment during his sentence. The court rejected Townes’ 

request for a downward departure, obviously because of the 

seriousness of the violation, and rejected the government’s 

request for an upward departure, obviously recognizing some of 

the positive points presented by Townes’ counsel. This was 

further evidenced by the court’s concluding note that, “if 

 

§ 7B1.1(a)(1); see also id. § 7B1.1 cmt. n.2 (explaining the 

meaning of “crime of violence” by reference to U.S.S.G. § 4B1.2, 

which lists “burglary of a dwelling” as a crime of violence).
17

[Townes] comes back, . . . there won’t be much sympathy for 

him,” implying some level of sympathy with the within-range 

sentence it imposed.

This record is not so vacant as to leave us at a loss as to 

why the court imposed the 21-month sentence. And certainly, it 

is more than adequate when considering the standard that governs 

our review of a district court’s decision to impose a revocation 

sentence within the Guidelines’ recommended range. In those 

circumstances, as already noted, we should be “hard-pressed to 

find any explanation . . . insufficient.” Thompson, 595 F.3d at 

547. In addition, we have recognized that a formal explanation 

made directly in connection with the imposition of a sentence is 

not required when some explanation “may be clear from the 

context.” Id. Only if the district court fails to “giv[e] any

indication of its reasons” for the sentence or if the context 

fails to illuminate those reasons, id., should we deem the 

court’s explanation “plainly unreasonable” and thus 

insufficient, see United States v. Crudup, 461 F.3d 433, 437 

(4th Cir. 2006).

I can “see no reason to direct a remand that would serve no 

purpose.” United States v. Bennett, 698 F.3d 194, 195 (4th Cir. 

2012). I would affirm.