UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-5191

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAVAAD FISHER, a/k/a Lover Butt,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, District 

Judge. (3:03-cr-00394-JRS-10)

Argued: February 1, 2013 Decided: March 15, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. Judge 

Shedd wrote a dissenting opinion.

ARGUED: Elizabeth W. Hanes, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Richmond, Virginia, for Appellant. Roderick Charles 

Young, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, 

for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Alexandria, Virginia, Caroline S. Platt, Appellate 

Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, 

Virginia, for Appellant. Neil H. MacBride, United States 

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

In December 2003, Appellant Javaad Fisher pleaded 

guilty to one count of conspiracy to possess with intent to 

distribute cocaine base in violation of 21 U.S.C. § 846 (2006). 

Thereafter, he was sentenced to 188 months imprisonment to be 

followed by a five year term of supervised release. Following 

the completion of his term of imprisonment, Appellant was twice 

found to be in violation of the conditions of his supervised 

release. As a result, his term of supervised release was 

revoked twice, once in November 2010 and again in November 2011. 

Appellant’s first revocation sentence was for a term of six 

months imprisonment to be followed by the remainder of his 

original term of supervised release. Appellant’s second 

revocation sentence was for a term of 30 months imprisonment 

with no ensuing supervised release.

Appellant appeals his second revocation sentence, 

arguing that it was procedurally unreasonable because the 

district judge failed to provide an individualized explanation 

for the sentence. We agree. Accordingly, we vacate Appellant’s 

revocation sentence and remand to the district court for resentencing.

I.

In late 2003, Appellant was indicted along with 

several other members of the Petersburg, Virginia-based “Third 
3

Ward Gang” in the United States District Court for the Eastern 

District of Virginia. On December 16, 2003, Appellant pleaded 

guilty to conspiracy to possess with intent to distribute 50 

grams or more of cocaine base in violation of 21 U.S.C. § 846

(2006). On March 17, 2004, Appellant was sentenced on that 

conviction to 188 months imprisonment with five years of

supervised release to follow.

One year later, on March 17, 2005, the Government 

filed a motion requesting that the district court reduce 

Appellant’s sentence based on his substantial assistance in 

another prosecution. See Fed. R. Crim. P. 35. Accordingly, on 

April 5, 2005, the district court entered an order reducing 

Appellant’s sentence from 188 months imprisonment to 84 months 

imprisonment. 

Upon successful completion of his term of 

imprisonment, Appellant began to serve his term of supervised 

release on October 2, 2009. On November 1, 2010, Appellant’s

probation officer filed a petition alleging Appellant violated 

the terms of his supervised release by (1) failing to follow 

instructions of the probation officer; and (2) testing positive 

for both marijuana and cocaine. The petition recommended a

revocation sentencing range of six to 12 months imprisonment 
4

with three years of supervised release to follow and a statutory 

maximum sentence of 60 months imprisonment.1

On December 6, 2010, Appellant pleaded guilty to the 

alleged supervision violations. At the revocation hearing, 

Appellant argued for a sentence of three months imprisonment 

because (1) he had a documented substance abuse problem which 

made it difficult for him to comply with the terms of his 

supervised release; (2) he had successfully completed a job 

training program for data cabling; and (3) he had expressed 

interest in attending an in-patient drug treatment program. 

In response, the Government argued that Appellant (1) 

did not actively participate in the drug treatment program; (2)

denied that he had a drug problem; (3) failed to follow the 

probation officer’s instructions by failing to find a job; and 

(4) had previously been accorded leniency through the Rule 35 

reduction to his original sentence. 

 1 Specifically, Appellant’s original offense of conviction,

conspiracy to possess with intent to distribute 50 grams or more 

of cocaine base, is a Class A Felony. Thus, Appellant’s

statutory maximum revocation sentence was 60 months

imprisonment. See 18 U.S.C. § 3583(e)(3). 

Additionally, Appellant’s criminal history category was IV. 

This, coupled with the fact that all of his supervised release 

violations were “Grade C” violations, resulted in a sentencing 

range of six to 12 months imprisonment. See U.S.S.G. 

§ 7B1.4(a).
5

After hearing these arguments, the district court 

sentenced Appellant to six months imprisonment to be followed by

the remainder of his term of supervised release. In so doing, 

the district court indicated:

Because of this violation, the Court will sentence Mr. 

Fisher to a period of incarceration of six months, and 

then there will – supervised release will continue 

following this period of incarceration. Mr. Fisher, 

like the prosecutor indicated, normally, you know, I 

would be giving you a sentence of five years instead 

of six months. But I’m going to give you an 

opportunity to try some drug treatment and see if the 

Probation Officer can work with you to get your 

problems solved. But you have to have some 

consequences for violating the conditions of your 

supervised release, and that will be the term of 

incarceration. As I said, following that, there will 

be supervised release, and we will make efforts to try 

to deal with your drug problem. But understand, if 

that doesn’t work, if the Probation Officer brings you 

back in here, I won’t have any choice but to send you 

to jail, and for a long time. So I’m trying to give 

you some opportunity.

J.A. 33-34.2

After Appellant served the six month term of 

imprisonment, his term of supervised release resumed on June 8, 

2011. On November 1, 2011, Appellant’s probation officer filed 

a second revocation petition, alleging Appellant had again 

violated the terms of his supervised release by (1) driving with 

a suspended license; (2) failing to follow the probation 

 2 Citations to the Joint Appendix (“J.A.”) refer to the 

Joint Appendix filed by the parties in this appeal.
6

officer’s instructions to file periodic employment search forms;

and (3) using marijuana. Again, Appellant’s revocation 

sentencing range was six to 12 months imprisonment, this time 

with a statutory maximum sentence of 54 months imprisonment.3 

On November 30, 2011, Appellant appeared before the 

district court and pleaded guilty to the latter two violations.4

 

The Government argued that Appellant should receive the 

statutory maximum sentence of 54 months imprisonment. In 

support, the Government argued that Appellant had received 

several “breaks” from the court and, therefore, had exhausted 

all of his chances. J.A. 44. Specifically, the Government 

noted (1) the fact that Appellant had initially been permitted 

to plead guilty to a drug charge rather than the more severe 

racketeering charge; (2) the 50% sentence reduction Appellant 

received for providing substantial assistance in another

investigation; and (3) the fact that Appellant received the 

 3 Because the second round of supervision violations again 

involved Grade C violations, Appellant’s revocation sentencing 

range was the same. However, because Appellant had already 

served six months imprisonment on the initial revocation, his 

statutory maximum sentence was reduced to 54 months 

imprisonment. See 18 U.S.C. § 3583(e)(3).

4 Appellant had been charged with driving on a suspended 

license in Virginia between the first and second revocation 

hearings. However, prior to the second revocation hearing, the 

state prosecutor voluntarily dismissed that charge. 

Accordingly, the Government elected not to pursue it as a basis 

for supervised release revocation.
7

lowest possible Guidelines sentence for his initial supervised 

release violation.

In response, Appellant agreed that supervised release 

was not working for him but disagreed with the Government’s 

proposed sentence. In support of a lower sentence, Appellant 

argued (1) his original sentence reduction was not a “break” 

because, to earn that reduction, he had to testify at the trial 

of five other defendants, placing himself and his family at risk 

of harm; (2) his continued inability to pass a drug test was 

based on his documented history of drug addiction but, at the 

time of the revocation, he was actively participating in a drug 

treatment program; (3) his alleged failure to file employment 

search reports was merely a technical violation because he was 

actively seeking a job and had obtained a handyman license; and 

(4) the fact that he did not have access to reliable 

transportation greatly impeded his job search. 

Thus, Appellant argued, “a sentence of the statutory 

maximum doesn’t reflect the conduct that he brings to this 

Court[,]” J.A. 46, and, therefore, he requested that the 

district court impose a sentence of 12 months and one day. 

Additionally, Appellant himself made a statement to the court, 

noting that, although he was still addicted to drugs, he had 

left his “criminal life behind” and wanted to become a good

father to his young daughter. J.A. 46-47.
8

After the parties had completed their arguments, the 

court pronounced its sentence, stating only:

All right, the supervised release will be revoked 

pursuant to [Appellant’s] plea to the conduct that was 

alleged. And the Court will impose the following 

sentence: A sentence of 30 months incarceration 

without any supervised release to follow. I think we 

have done all that we can do for Mr. Fisher.

J.A. 47. Appellant timely noted an appeal.

On appeal, Appellant argues that the district court 

procedurally erred by failing to provide a particularized 

explanation for the sentence it chose. The Government disputes 

this contention, arguing that, in combination, the district 

court’s statements at both of Appellant’s revocation hearings 

made the reasons underlying the 30 month sentence sufficiently 

clear.

II.

We will affirm a sentence imposed after a revocation 

of supervised release unless that sentence is plainly 

unreasonable. See United States v. Crudup, 461 F.3d 433, 439-40 

(4th Cir. 2006). In making this determination, we must first 

determine whether the sentence is reasonable. See id. at 438. 

This inquiry parallels ordinary reasonableness review with some 

modification. See United States v. Moulden, 478 F.3d 652, 656 

(4th Cir. 2007) (“This initial inquiry takes a more ‘deferential 

appellate posture concerning issues of fact and the exercise of 
9

discretion’ than reasonableness review for guidelines 

sentences.” (quoting Crudup, 461 F.3d at 439)).5

Only if we determine that a sentence is unreasonable 

do we determine whether it was “plainly so.” See Moulden, 478 

F.3d at 657. In making this determination, we rely “on the 

definition of ‘plain’ that we use in our ‘plain’ error 

analysis.” Crudup, 461 F.3d at 439. Specifically, an error is 

plain where it is “‘clear’ or, equivalently, ‘obvious.’” United 

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (quoting 

United States v. Olano, 507 U.S. 725, 734 (1993)).

Finally, even if we determine that a revocation 

sentence is plainly unreasonable, we will affirm the sentence if 

the error is harmless. See United States v. Thompson, 595 F.3d 

544, 548 (2010). Under this inquiry, the Government bears the 

burden to establish that the error “did not have a substantial 

and injurious effect or influence on the result and we can say 

with fair assurance, that the district court’s explicit 

consideration of the defendant’s arguments would not have 

 5 Additionally, not all of the § 3553(a) factors are 

applicable on review of a revocation sentence, as a district 

court may not consider (1) whether the revocation sentence 

“reflects the seriousness of the offense, promotes respect for 

the law, and provides just punishment for the offense” as 

discussed in § 3553(a)(2)(A); or (2) whether there are other 

“kinds of sentences available” as discussed in § 3553(a)(3). 

See Crudup, 461 F.3d at 439 (internal quotation marks and 

alterations omitted).
10

affected the sentence imposed.” United Stats v. Boulware, 604 

F.3d 832, 840 (4th Cir. 2010) (internal quotation marks and 

alterations omitted).

III.

A. Reasonableness

We first conclude Appellant’s sentence was 

procedurally unreasonable.6

 A sentence is procedurally 

unreasonable when, inter alia, the sentencing court fails “to 

adequately explain the chosen sentence—including an explanation 

for any deviation from the Guidelines range.” Gall, 552 U.S. at 

51. 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, but it still ‘must provide a statement 

of reasons for the sentence imposed.’” Thompson, 595 F.3d at 

547 (quoting Moulden, 478 F.3d at 657).

 6 Normally, we review revocation sentences for procedural 

and substantive reasonableness. See Crudup, 461 F.3d at 438. 

However, because Appellant does not challenge the substantive 

reasonableness of his sentence, we need only determine whether 

his sentence was procedurally unreasonable. Further, our 

conclusion that Appellant’s sentence was procedurally 

unreasonable moots any consideration of substantive 

reasonableness. See United States v. Carter, 564 F.3d 325, 328 

(4th Cir. 2009) (“If, and only if, we find the sentence 

procedurally reasonable can we ‘consider the substantive 

reasonableness of the sentence imposed under an abuse-ofdiscretion standard.’”) (quoting Gall v. United States, 552 U.S. 

38, 51 (2007)).
11

Additionally, “‘[w]here the defendant or prosecutor 

presents non-frivolous reasons for imposing a different 

sentence’ than that set forth in the advisory Guidelines, a 

district judge should address the party's arguments and ‘explain 

why he has rejected those arguments.’” Carter, 564 F.3d at 328 

(quoting Rita v. United States, 551 U.S. 338, 357 (2007)). As 

we held in Carter, “the Supreme Court's recent sentencing 

jurisprudence plainly precludes any presumption that, when 

imposing a sentence, the district court has silently adopted 

arguments presented by a party. Rather, the district judge, not 

an appellate court, must make an individualized assessment based 

on the facts presented to him.” See Carter, 564 F.3d at 329 

(quoting Gall 552 U.S. at 49-50).

Finally, in all sentencing appeals involving an outof-Guidelines sentence, as we have here, “‘the district court 

must give serious consideration to the extent of the departure 

or variance, and must adequately explain the chosen sentence to 

allow for meaningful appellate review and to promote the 

perception of fair sentencing.’” United States v. King, 673 

F.3d 274, 283 (4th Cir. 2012) (quoting United States v. 

Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011)).

Here, Appellant’s sentence was procedurally 

unreasonable because the district court failed to address any of 

Appellant’s specific arguments raised at the second revocation 
12

hearing. As noted, at the second revocation hearing, Appellant 

made several arguments in favor of his proposed sentence, some 

of which had not been raised at the prior revocation hearing.

In particular, at the second revocation hearing, Appellant 

argued for the first time that (1) he had been actively 

participating in drug treatment programs; (2) he had obtained a 

business license to become a handyman and was actively seeking 

employment; and (3) his initial sentence reduction should not be 

considered as a reason for imposing a higher revocation sentence 

because it was not a “break” inasmuch as he had to testify 

against other gang members in order to earn that reduction.

This is significant because even if we were to accept 

the Government’s argument that we should simply consider the 

district court’s statements from the initial revocation hearing

in order to satisfy Carter, we still could not find that the 

district court explicitly addressed Appellant’s arguments as 

required by Carter. This problem is compounded by the fact 

that, in this case, Appellant’s sentence represented a 150% 

increase from the top of the revocation sentencing range. As 

noted, the specificity with which a district court must explain 

its chosen sentence increases in cases where the district court 

imposes an above-Guidelines sentence. See King, 673 F.3d at

283. Accordingly, in this case, the district court’s sole
13

explanation, “I think we have done all that we can do for Mr. 

Fisher” is insufficient to support the sentence imposed.

In response, the Government argues that, because the 

ultimate sentence imposed fell between the parties’ recommended 

sentences, the district court necessarily considered each of the 

parties’ arguments when fashioning the sentence. However, this 

argument invites us to do precisely what Carter forbids us to do 

and to presume that the district court silently considered 

Appellant’s arguments. Accordingly, because the district court 

did not expressly consider the arguments that Appellant made at 

the second revocation hearing, Appellant’s sentence was 

procedurally unreasonable.

Having concluded that Appellant’s sentence was 

unreasonable, we must now determine whether it was plainly so. 

To be plainly unreasonable, a sentence must “run afoul of 

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

we noted that, since the Moulden decision in 2007, it has been 

clearly settled in the Fourth Circuit that a district court must 

explicitly state its reasons for imposing a particular 

revocation sentence. See Thompson, 595 F.3d at 548 (“We are 

certain, though, that the district court's obligation to provide 

some basis for appellate review when imposing a revocation 

sentence, however minimal that basis may be, has been settled in 

this Circuit since at least Moulden.”). Accordingly, because 
14

the district court did not follow this clearly settled law, 

Appellant’s sentence was plainly procedurally unreasonable.

B. Harmless Error

Finally, the Government contends that any error was 

harmless because explicit consideration of Appellant’s arguments 

on remand would not alter his sentence. The Government bases 

this argument on the fact that the district court had signaled 

its intent to impose a lengthy sentence on Appellant at the 

first revocation hearing and Appellant’s arguments for a reduced 

sentence at the second revocation hearing were “brief and 

straightforward.” Br. of Appellees 12. We disagree. 

As noted, at the second revocation hearing, Appellant 

made different arguments than he had made at the first 

revocation hearing. Accordingly, the district court was 

compelled to address these arguments and provide an 

“individualized” explanation for its decision to deviate from 

the Guidelines. Because the district court did not do so, we 

cannot conclude the error was harmless. See Lynn, 592 F.3d at

582 (“We cannot conclude that this error was harmless. When 

faced with an unexplained out-of-Guidelines sentence, we have in 

the past remanded for resentencing because we could not 

determine why the district court deemed the sentence it imposed 

appropriate. We see no reason to abandon this approach today.”)

(internal citations and quotation marks omitted).
15

The Government cites two cases in which we applied 

harmless error to a procedurally unreasonable sentence where the 

error was based on a district court’s inadequate explanation. 

See, e.g., United States v. Hernandez-Frias, 475 Fed. App’x 488 

(4th Cir. 2012); United States v. Boulware, 604 F.3d 832, 840

(4th Cir. 2010). However, neither of these cases involved an 

above-Guidelines sentence. This is significant because, as 

noted, a district court has a heightened burden when explaining 

an above-Guidelines sentence. Thus, because the district court 

provided no individualized explanation for its decision to 

impose an above-Guidelines sentence, we cannot apply harmless 

error in this instance.

IV.

For these reasons, we vacate Appellant’s sentence and 

remand to the district court for resentencing.

VACATED AND REMANDED
16

SHEDD, Circuit Judge, dissenting:

Javaad Fisher’s sentence is procedurally reasonable and, 

even if it were not, any error is harmless. Accordingly, I 

respectfully dissent from the majority’s decision to vacate his 

sentence and remand for further proceedings. 

In reviewing a sentence imposed for violating supervised 

release we apply the “plainly unreasonable” standard, United 

States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006), and “take[] 

a more deferential appellate posture concerning issues of fact 

and the exercise of discretion than reasonableness review for 

guidelines sentences,” United States v. Moulden, 478 F.3d 652, 

656 (4th Cir. 2007) (internal quotation marks omitted). 

Relevant here, the court’s statement of reasons “‘need not be as 

specific as has been required’ for departing from a traditional 

guidelines range.” Id. at 657 (quoting Crudup, 461 F.3d at 

439)). A court is required to “place on the record an 

‘individualized assessment’ based on the particular facts of the 

case before it.” United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009). 

As the majority recounts, the district court gave an 

individualized explanation on the record at Fisher’s first 

revocation sentencing hearing, explaining that it would 

“normally” have sentenced Fisher to the statutory maximum of 60 

months imprisonment but, in recognition of his drug problem, the 
17

court would give him “an opportunity” to get his “problems 

solved,” therefore only imposing a sentence of 6 months 

imprisonment. (J.A. 33). The court made clear, however, that 

“if that doesn’t work, if the Probation Officer brings you back 

in here, I won’t have any choice but to send you to jail, and 

for a long time.” (J.A. 34). Fisher failed to heed this advice 

and after his release he quickly violated his supervised release 

conditions. At the second revocation hearing, the Government—

represented by the same Assistant U.S. Attorney (AUSA) who 

originally prosecuted Fisher in 2003—pressed for the statutory 

maximum of 54 months imprisonment,1 explaining in detail the 

numerous breaks Fisher had been afforded and his failure to take 

advantage of the court’s repeated leniency. Fisher’s arguments 

in response, made by the same attorney who represented him at 

the first revocation hearing, were unexceptional and, in 

substance, no different from those at the first hearing.2 The 

 1 At the first hearing, the Government argued for a sentence 

of nine months imprisonment. 

2 At the first revocation hearing Fisher’s attorney focused 

on Fisher’s substance abuse and requested a “more intensive drug 

treatment program.” (J.A. 31). Fisher’s attorney noted that 

Fisher had not had “any major issues” while on supervision and 

that he was trying to find a job but had been unable to do so. 

Fisher himself then apologized to his community and his family. 

At the second hearing, Fisher’s attorney argued that Fisher had 

committed only “technical” violations, had “consistently come to 

this Court and said, ‘I have a drug abuse problem,’” and was 

attempting to find a job. (J.A. 45-46). Fisher again 

(Continued)
18

court then imposed a sentence of 30 months, adding “we have done 

all that we can do for Mr. Fisher.” 

In my view, the district court provided an individualized 

explanation for Fisher’s sentence during his sentencing process 

at the first hearing. At the second hearing, the court simply 

implemented the sentence it had already promised—and had 

provided an individualized explanation for—at the first 

sentencing. The court’s words, that it had done all it could 

for Fisher, indicate that it had given him a break the first 

time with the promise of a significant sentence if Fisher failed 

to take advantage of the opportunity. I do not believe Carter

requires more, particularly given the more deferential standard 

we employ in the supervised release context. Here, the same 

judge, the same AUSA, and the same criminal defense attorney 

were present at both hearings. In fact, Fisher’s attorney 

admitted at oral argument that she was not surprised that the 

court imposed this sentence. Therefore, I believe Fisher’s 

sentence is procedurally reasonable and is certainly not 

“plainly” unreasonable. 

 

apologized, claimed he had left his criminal life behind, and 

mentioned that he wanted to be there for his daughter. While 

the words may have changed, the substance of Fisher’s arguments 

was the same at both hearings. 
19

Even assuming the district court committed procedural 

error, any error is harmless. United States v. Boulware, 604 

F.3d 832, 838-39 (4th Cir. 2010). Under the harmless error 

standard, as it applies to procedural sentencing errors, “the 

government may avoid reversal only if it demonstrates that the 

error did not have a substantial and injurious effect or 

influence on the result and we can say with fair assurance that 

the district court’s explicit consideration of [the defendant’s] 

arguments would not have affected the sentence imposed.” Id. at 

838 (internal quotation marks and alterations omitted). The 

Government has satisfied that standard here. The same 

experienced district judge sentenced Fisher in 2004, reduced his 

sentence in 2005, and handled both revocation hearings. The 

judge warned Fisher at the first revocation hearing that Fisher 

would face significant jail time if he violated supervised 

release again, leaving us with “no doubt” that the court would 

have imposed the same sentence, particularly given that Fisher’s 

arguments were “very weak.” Id. at 839. Remanding this case 

for further proceedings is a “pointless waste of resources,” id.

at 840, given that the district court will simply reenter—with 

an additional paragraph of explanation—the same sentence, “[a] 

reasonable sentence” that “we would” then “be compelled to 

affirm.” United States v. Savillon-Matute, 636 F.3d 119, 123 

(4th Cir. 2011) (internal quotation marks omitted). Clearly, 
20

the district judge handled this revocation properly, and I 

believe quite admirably—stating clearly what he intended to do, 

but giving the defendant one last chance to correct his 

behavior. To require the judge to simply restate his clear 

intention and determination under these circumstances would 

result in “the empty formality of an unnecessary remand.” 

United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012). 

For these reasons, I respectfully dissent.