UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4094

UNITED STATES OF AMERICA,

Appellee,

v.

ANDREW WALLACE,

Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Arenda L. Wright Allen, 

District Judge. (2:10-cr-00152-AWA-TEM)

Argued: September 23, 2016 Decided: December 5, 2016 

Before DUNCAN, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. Andrew Curtis 

Bosse, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, 

for Appellee. ON BRIEF: Geremy C. Kamens, Acting Federal Public 

Defender, Alexandria, Virginia, Richard J. Colgan, Assistant 

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Norfolk, Virginia, for Appellant. Dana J. Boente, United States 

Attorney, Alexandria, Virginia, Darryl J. Mitchell, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

After Andrew Wallace violated the terms of his supervised 

release, the district court revoked his release and sentenced 

him to the statutory maximum of sixty months’ imprisonment.

Wallace challenges the sentence on the grounds that it is

plainly unreasonable.1 Finding no error, we affirm.

I.

In 1992, Wallace pleaded guilty to one count of being a 

felon in possession of a firearm, two counts of armed robbery,

and one count of carrying a firearm during a crime of violence.

The district court found him to be an armed career criminal and 

sentenced him to 240 months in prison, with three years of 

supervised release. The terms of his supervised release

required Wallace to maintain a steady job, notify the probation 

officer of any change of residence, and report any instances in 

which he was arrested or questioned by law enforcement. Wallace 

was released from prison on November 9, 2009, and his supervised 

release began.

On November 15, 2010, Wallace’s probation officer filed a 

petition to revoke his supervision after Wallace was arrested 

and charged with two counts of sodomy by force and one count of 

 1 On appeal, Wallace challenges only his sentence, not the 

revocation of his supervised release.
3

rape. At the time of his arrest, Wallace was living in his 

vehicle. A woman staying with Wallace in his vehicle accused 

him of the sexual assault. Upon Wallace’s arrest, a search of 

his vehicle yielded binoculars, heavy rope, a knit cap, gloves, 

and three knives, which were considered as burglary tools. In 

addition to the sexual assault crimes, the revocation petition 

charged Wallace with possession of a dangerous weapon (that is,

the knives found in his vehicle) and failure to notify his 

probation officer that he was unemployed.

The state court eventually dismissed the sodomy and rape 

charges. In the later revocation of supervised release 

proceeding, the district court determined that the dismissed 

charges and dangerous weapon allegations were not supported by 

probable cause. Because only the failure to notify of 

unemployment, a minor violation, remained, the district court 

dismissed the petition at the Government’s request.

On September 10, 2012, the probation officer filed another

petition to revoke Wallace’s supervised release. This petition 

charged Wallace with committing two new criminal offenses: 

indecent liberties and reckless driving. The revocation 

petition alleged that while Wallace was babysitting a ten-yearold girl, he walked into her bathroom while she was taking a 

bath, and the girl covered herself with a washcloth. Wallace 

requested that she remove the washcloth, and the girl refused.
4

When Wallace began to unzip his trousers, the girl screamed, and 

Wallace left. Local law enforcement arrested Wallace and 

charged him with indecent liberties with a minor. On November 

18, 2014, the probation office filed an addendum to its 

petition, informing the court that Wallace had entered a 

conditional guilty plea and was convicted in state court of 

indecent liberties with a child. The state court sentenced him

to five years in prison, with three years and two months 

suspended, and three years of supervised probation.

On July 12, 2012, Wallace was convicted in state court of 

driving eighty-five miles per hour in a fifty-five-mile–per-hour 

zone. He was sentenced to 110 days’ imprisonment, with 105 days 

suspended, and two years’ probation. Although Wallace appealed 

that conviction, his appeal had been denied before the district 

court’s revocation hearing.

The revocation petition also charged Wallace with failure 

to notify the probation officer of a change in residence. On 

June 18, 2012, Wallace informed his probation officer that he 

had been evicted from his apartment and was residing at a local 

rescue mission. On July 25th, local police informed the 

probation officer that Wallace had not been at the mission since 

July 7th. After being questioned by his probation officer, 

Wallace stated that he was living in his car and explained that 
5

he did not report the change in residence since he did not have 

an actual address to report.

Finally, the petition alleged that Wallace had failed to 

notify his probation officer of contact with law enforcement.

On July 13th, police were dispatched to a transit center after 

receiving reports of a man offering women rides to their homes.

The police made contact with Wallace, who had a woman in his 

vehicle. The officers reported that the woman appeared 

frightened, positioning herself so that the officers were 

between her and Wallace. Although Wallace denied offering rides 

to women, the woman indicated that he was in fact attempting to 

do so and that Wallace claimed he had given rides to other

women. Wallace claimed that he did not know he needed to notify 

the probation office of this contact with police, although he 

was later banned from the transit center for his inappropriate 

conduct.

At the revocation hearing, Wallace admitted all the

allegations other than the indecent liberties charge, since it 

was on appeal.2 The district court found Wallace in violation of 

the conditions of his supervised release and noted that, for 

 2 Wallace’s appeal, in which he only alleged his right to a 

speedy trial was violated, has since been denied by both the 

Court of Appeals of Virginia and the Supreme Court of Virginia. 

See Wallace v. Commonwealth, 774 S.E.2d 482 (Va. Ct. App. 2015), 

aff’d, No. 151296, 2016 WL 3135485 (Va. June 2, 2016).
6

purposes of the United States Sentencing Commission’s (“USSC”) 

guidelines, his criminal history warranted a category of six, 

and his most serious violation, the indecent liberties 

conviction, was a grade A violation, garnering a policy 

statement range of fifty-one to sixty-three months of 

incarceration. In making a sentencing recommendation, the

Government discussed the prior dismissed petition, emphasizing

the “very serious” charges of rape and forcible sodomy. J.A. 

41. The Government then moved on to the “very serious” and 

“very disturbing” indecent liberties conviction, terming the 

state court’s sentence for this charge “a disgrace.” J.A. 41-

42. This pattern of dangerous behavior led the Government to 

request a sentence of at least forty-eight months.

Wallace disputed the categorization of the indecent 

liberties conviction as a grade A violation, and the court 

ordered the parties to submit briefs on the issue and adjourned 

the hearing. The parties later stipulated that the indecent 

liberties conviction was indeed a grade B violation, reducing 

the policy statement range to twenty-one to twenty-seven months.

At the reconvened revocation hearing, the Government again 

asked the court to consider the safety of the public and impose 

a sentence above the policy statement range. Wallace informed 

the court that he had obtained a civil judgment of $300,000 

against his accuser on the dismissed rape and sodomy charges. 
7

He explained that the only reason he pleaded guilty to the 

indecent liberties charge is that he had been in jail for almost 

two years at that point and essentially received a time-served 

sentence. Wallace suggested that the state-supervised probation 

rendered further federal supervision unnecessary. Finally, he 

requested the court to impose a sentence between six and eight 

months, well below the USSC’s policy statement range.

In announcing its decision, the district court discussed

the sentencing factors found in 18 U.S.C. § 3553(a), stating, 

“Deterrence is a factor. The public is a factor. Correctional 

treatment is a factor.” J.A. 64. The court reviewed the 

sentencing report completed for Wallace’s robbery and weapon 

convictions, noting his criminal record and family history. The 

court briefly touched on his arrest for rape and sodomy and

discussed the knives and burglary tools discovered by the police 

in their search of Wallace’s vehicle. The court went on to 

recognize that the state dismissed the rape and sodomy charges 

and Wallace had obtained a civil judgment against the accuser.

The district court also took into consideration Wallace’s 

reckless driving conviction and failure to inform the probation 

office about his change in residence and the incident of 

harassment at the transit center from which he had been banned.

After this fairly extensive discussion of Wallace’s 

violations of his supervised release, the court stated:
8

So it is creepy. So I hope you’re sincere in 

your desire to get treatment. I’ll say that first.

I’m looking at the 3553(a) statutory factors. 21 

to 27 months is not sufficient, in the Court’s view, 

and, you know, the statutory max is 60. In light of 

your criminal history category of six, the violent 

charges that you [pleaded guilty to in 1992], and then 

you’ve been under our supervision, but you’ve got 

these flags which concern the Court.

So I’m looking at specific deterrence as it 

pertains to you and protecting the public. Then I do 

agree with [defense counsel] that you do not need any 

more federal supervision in light of all the 

supervision that you’re going to be getting via the 

state.

So all that being said, I’m going to sentence you 

to 60 months. You will be remanded to the custody of 

the marshals. Then you will have no more federal 

supervised release once you do that. And then we just 

hope that you get well and hope you don’t commit any 

other offenses that cause you to be returned back in a 

jumper or handcuffs or a cage for the rest of your 

days.

J.A. 68-69. Wallace filed a timely appeal. We have 

jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742(a).

II.

The Court will uphold a revocation sentence “unless it 

falls outside the statutory maximum or is otherwise plainly 

unreasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th 

Cir. 2015).3 4 We first determine whether the sentence is 

 3 We have omitted internal quotation marks, alterations, and 

citations here and throughout this opinion, unless otherwise 

noted.
9

procedurally and substantively reasonable. United States v. 

Wynn, 786 F.3d 339, 341 (4th Cir. 2015); see also United States 

v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012) (instructing that 

this analysis should follow the directions provided in Gall v. 

United States, 552 U.S. 38 (2007)). A sentence is procedurally 

unreasonable if the district court failed to explain its 

sentence, neglected to consider the USSC’s suggested sentencing 

range or the § 3553(a) sentencing factors when determining the 

sentence, or contemplated an improper § 3553(a) factor. See

Gall, 552 U.S. at 51; Bennett, 698 F.3d at 200. In reviewing 

for substantive reasonableness, the Court must “take into 

account the totality of the circumstances, including the extent 

of any variance from the [policy statement] range.” Gall, 552 

U.S. at 51. If we find that the sentence is reasonable, the 

analysis ends there. Wynn, 786 F.3d at 341. If the sentence is 

unreasonable, the Court then determines whether it is plainly

unreasonable, that is, whether it “run[s] afoul of clearly 

settled law.” United States v. Thompson, 595 F.3d 544, 548 (4th 

Cir. 2010).

 

4 The parties dispute whether we should review the sentence 

under the “plain error” standard. Because the Court finds that 

the sentence is proper under the more defendant-friendly 

“plainly unreasonable” standard, it is unnecessary to determine 

whether the “plain error” standard applies.
10

We are even more deferential to the district court’s 

imposition of a revocation sentence than with the original 

sentence. A district court is given “broad discretion to revoke 

its previous sentence and impose a term of imprisonment up to 

the statutory maximum.” United States v. Crudup, 461 F.3d 433, 

439 (4th Cir. 2006); see also United States v. Moulden, 478 F.3d 

652, 656 (4th Cir. 2007) (stating that our reasonableness 

“inquiry takes a more deferential appellate posture concerning 

issues of fact and the exercise of discretion than 

reasonableness review for guidelines sentences”). The USSC’s 

suggested sentencing range for revocation is a non-binding

“policy statement” rather than a “guideline.” See U.S.

Sentencing Guidelines Manual § 7B1.4; Thompson, 595 F.3d at 546-

47; see also Moulden, 478 F.3d at 655. The district court has 

“greater flexibility in imposing a sentence for . . . supervised 

release violations than a guideline would allow.” Moulden, 478 

F.3d at 655.

III.

Wallace argues that the sentence is procedurally 

unreasonable because the district court impermissibly considered 

a § 3553(a) factor not included in § 3583(e) and it failed to 

provide an adequate explanation when imposing the sentence. We 

address each contention in turn.
11

A.

18 U.S.C. § 3583 instructs that the district court must 

consider certain factors found in § 3553(a) when imposing a 

sentence upon revoking supervised release. These factors 

include the defendant’s criminal history, the nature of the 

criminal offense, and the need for specific deterrence and 

protection of the public, among others. Compare 18 U.S.C. 

§ 3583(e), with 18 U.S.C. § 3553(a). A court is not “expressly 

prohibit[ed] . . . from referencing other relevant factors 

omitted from the statute.” United States v. Webb, 738 F.3d 638, 

641 (4th Cir. 2013). For example, “the factors listed in 

§ 3553(a)(2)(A) are intertwined with the factors courts are 

expressly authorized to consider under § 3583(e).” Id. The 

mere “reference to the § 3553(a)(2)(A) sentencing 

considerations, without more, [does not] automatically render a 

revocation sentence unreasonable.” Id. at 642. Only when a 

district court “impose[s] a revocation sentence based 

predominately on the seriousness of the releasee’s violation or 

the need for the sentence to promote respect for the law and 

provide just punishment” will the Court conclude that the 

sentence is procedurally unreasonable. Id.

Wallace maintains that the district court impermissibly 

took the seriousness of the violations into account in 

calculating his sentence. He points to the Government’s 
12

extensive discussion of the indecent liberties conviction, its 

characterization of the offense as “very serious,” and its 

description of the state sentence as “a disgrace.” Wallace also 

takes issue with the Government dwelling on the dismissed rape 

and sodomy charges and the district court’s reference to those 

charges at the sentencing hearing. Finally, Wallace challenges 

the district court’s consideration of the transit center

incident, for which Wallace was never arrested or charged, and 

the court calling Wallace’s actions “creepy.”

Wallace’s arguments are unavailing. The bulk of his 

contentions regarding the indecent liberties conviction and the 

dismissed rape and sodomy charges revolve around assertions the 

Government made to the district court instead of the court’s own 

statements. It is unclear how Wallace expects to impute the 

Government’s averments to the district court’s reasoning, but we 

are not willing to take the speculative leap required to make 

that inference.

The district court clearly stated that a statutory maximum 

sentence was warranted for specific deterrence and public 

protection, two § 3553(a) factors it was permitted to consider. 

The court did not mention the word “serious” other than to state 

that it found Wallace “guilty of the serious violation” (in 

comparison to the other violations) of indecent liberties for 

the purposes of the sentencing hearing. J.A. 45.
13

Nor is it error that the court described the dismissed rape 

and sodomy charges in discussing Wallace’s history. The 

district court certainly had the authority to acknowledge the 

events occurring between the beginning of Wallace’s supervised 

release and the sentencing hearing, including those in the 

dismissed petition. In addition to the dismissed charges, the 

police found knives and other items constituting “burglary 

tools,” according to the probation office, and the district 

court was permitted to factor this into its sentencing 

determination. There is no indication that the court based its 

decision on the “seriousness” of the dismissed rape and sodomy 

charges or considered them as a factor in arriving at its 

sentencing decision. In any event, the district court cured any 

possible error when it expressly recognized that the charges 

were dropped and that Wallace had obtained a civil judgment 

against the accuser.

Similarly, the district court did not impermissibly 

consider the transit center event as the violation for failure 

to inform the probation officer of contact with police. It was 

appropriate for the district court to recount the details 

surrounding that violation. Furthermore, although Wallace tries 

to tie the “creepy” comment to the court’s transit center 

discussion, it is clear from the comment’s position immediately 
14

after the court’s recognition of the indecent liberties 

conviction that it referred to Wallace’s conduct as a whole.

B.

The district court is required to “adequately explain” its 

sentencing determination, regardless of whether it adopts the 

USSC’s suggested sentence or makes an upward or downward 

departure. Thompson, 595 F.3d at 547. “A court need not be as 

detailed or specific when imposing a revocation sentence as it 

must be when imposing a post-conviction sentence, but it still 

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

Id. The district court is not obligated to “robotically tick 

through § 3553(a)’s every subsection.” Moulden, 478 F.3d at 

657. The explanation need only be sufficient enough to allow us 

to “effectively review the reasonableness of the sentence” and 

assure us “that the sentencing court considered the § 3553(a) 

factors with regard to the particular defendant before [it].” 

Id.

Wallace argues that the district court’s explanation for 

the statutory maximum sentence was insufficient. He also 

contends that the district court erred when it failed to 

consider a sentence somewhere between the policy statement range 

and the statutory maximum.

While the district court’s sentencing explanation edges 

tenuously close to being insufficient, we find it adequate. The 
15

court explicitly considered the USSC’s policy statement range as 

required. Then, after a detailed account of all of the 

circumstances surrounding the charged violations, the court 

expressed concern about the violations in conjunction with

Wallace’s criminal history. The district court sentenced 

Wallace to the statutory maximum based on the § 3553(a) factors 

of specific deterrence and public protection. While succinct, 

the district court met the low bar of reasonableness that 

applies to revocation of supervised release. The brevity of the 

district court’s analysis, although not ideal, does not require 

vacation and remand for resentencing.

Our holding is not inconsistent with the decision in 

Thompson. There, the Court vacated Thompson’s sentence and 

remanded for a new sentencing proceeding after the district 

court sentenced him to the policy statement maximum term. See

Thompson, 595 F.3d at 546. The district court had not applied

the § 3553(a) factors and only discussed “Thompson’s history, 

conduct, and characteristics” after announcing that sentence and

in the context of whether he should be allowed to self-report to 

prison. Id. We held that the district court erred because it 

did not “giv[e] any indication of its reasons” for its sentence.
16

Id. at 547. That is not the case here, where the district court 

provided sufficient, albeit brief, support for its decision.5

IV.

For the foregoing reasons, the order of the district court 

is

AFFIRMED.

 5 Had this been an appeal from an initial sentence, we would 

perhaps be inclined to decide differently. However, in view of 

the higher deference afforded to the district court in 

revocation proceedings, and that the court’s sentencing 

statements were well in excess of the deficiency found in 

Thompson, we conclude that the district court explained its 

decision sufficiently.