UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4817

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THEODUS WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:96-cr-00109-BO-2)

Argued: September 24, 2010 Decided: November 12, 2010

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. 

May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

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

Public Defender, Raleigh, North Carolina, for Appellant. George 

E. B. Holding, United States Attorney, Anne M. Hayes, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Theodus Williams appeals a twenty-four month sentence for 

violating the terms of his supervised release. Williams argues 

that his sentence is plainly unreasonable and that the district 

court erred when, rather than relying on 18 U.S.C. § 3553 

factors, it made an unfounded statement about who Williams 

likely associated with in the past. For the reasons that 

follow, we must affirm Williams’ sentence.

In 1996, Williams was convicted of being a felon in 

possession of a firearm under 18 U.S.C. § 922(g) and aiding and 

abetting. He was sentenced to a 120 month prison term followed 

by thirty-six months of supervised release. On February 22, 

2008, Williams was released from prison and began his supervised 

release. More than a year later, on March 13, 2009, the 

district court continued Williams on supervision after he 

received traffic violations for driving with a revoked license 

and having tinted windows.

On June 9, 2009, Williams tested positive for cocaine use 

and admitted that he had used the drug three days earlier.

Based on this test and his earlier traffic violations, Williams’

probation officer petitioned the district court for 

modifications to the terms of his supervision. Nine days later, 

on June 18, the court granted the petition. Williams was

ordered to spend two days in prison and to enroll in the
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Surprise Urinalysis Program for an additional ninety days. 

Williams was also ordered to participate in the Drug Reduction 

on Probation and Supervised Release (“DROPS”) program. Once 

enrolled in the DROPS program, an individual on supervised 

release can be incrementally imprisoned, beginning with two days 

after the first positive test for drug use, five days after the 

second use, ten days after the third use, and so on. Under the 

terms of the DROPS program, the total term of imprisonment for 

drug use cannot exceed thirty days. Williams began at the first 

level of use.

Less than a month later, on July 9, 2009, Williams’ 

probation officer petitioned the court to revoke supervised 

release. In addition to the infractions contained in the June 

18 petition, this second petition listed three new violations: 

(1) criminal conduct, for Williams’ felony charge of possession 

of cocaine then before the North Carolina, Vance County District 

Court; (2) possessing a controlled substance; and (3) using a 

controlled substance because, on July 2, Williams admitted to 

his probation officer that he had used cocaine several times in 

the last month. All three violations stemmed from a single June 

19, 2009 incident where Williams was arrested by local police 

for possessing a vial containing cocaine residue. The district 

court issued a warrant for Williams’ arrest.
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At the July 29, 2009, revocation hearing before the 

district court, Williams admitted to violations (2) and (3), and 

did not contest violation (1). Williams also apologized for his 

conduct, and stated that he was ready for “[w]hatever 

consequence I’ve got to face, I’m ready to own up to it.” The 

government then informed the court of Williams’ “really bad 

record,” involving drugs and the shooting of at least two 

people. After informing the court of the statutory guidelines 

range, twenty-one to twenty-four months, the government asked 

for the maximum. The court then asked defense counsel if there 

was “Anything else?” Defense counsel responded that Williams 

had been arrested with only a small canister holding cocaine 

residue for personal use, had been working, was thirty-nine 

years old, and was living in Henderson.

The court interrupted defense counsel to observe that 

Williams was “born and raised in Henderson, and he has a record 

. . . in Henderson that goes back over twenty years.” The 

hearing then continued:

The Court: [Y]ou’ve been around here with me over the 

past couple of decades and you’ve got the crowds from 

the ‘80s and the ‘90s and the 2000s, all from 

Henderson. I mean, he probably hung out with the 

Lance Morrison crowd and the old – Hickmans and all 

those people. I mean, but he’s spent ten years in 

jail so he missed some of it. But, I mean, you’re 39, 

you’re going to be 40 years old.

Defendant: Yeah, I just turned 39 yesterday, sir.
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The Court: Yeah. Okay. You’re 39. Anyway, I’ll 

give him the 24 months.

The court then entered a judgment against Williams, but said 

nothing further about the sentence.

The court’s statements about Williams’ possible past 

associations with Lance Morrison and the “Hickmans” in 

Henderson, North Carolina were groundless. The comments did not

appear to be based on any facts in the record or any evidence 

presented by the parties. Nor were they relevant to the court’s 

obligations under 18 U.S.C. § 3583(e), which required it to 

assess Williams’ revocation sentence using the section 3553

factors.

Nonetheless, neither Williams nor his counsel requested a 

sentence within the guidelines range, sought a sentence that 

departed from the guidelines range, or even mentioned his courtordered enrollment in the DROPS program.

“[R]evocation sentences should be reviewed to determine 

whether they are ‘plainly unreasonable’ with regard to those 

§ 3553(a) factors applicable to supervised release revocation 

sentences.” United States v. Crudup, 461 F.3d 433, 437 (4th 

Cir. 2006). However, where, as here, the defendant fails to 

reserve an objection to a sentence by “sufficiently alert[ing] 

the district court of its responsibility to render an 

individualized explanation” pursuant to the § 3553 factors, we 
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apply the more rigorous plain error standard of review. United 

States v. Lynn, 592 F.3d 572, 577-80 (4th Cir. 2010).

The plain error standard of review is a demanding one. The

defendant must identify an error, demonstrate that the error was 

plain, and show that it affected his substantial rights. United 

States v. Olano, 507 U.S. 725, 732 (1993). And, even when we do 

detect a plain error, we must refrain from reversing the 

district court unless the error will “seriously affect[] the 

fairness, integrity or public reputation of judicial 

proceedings.” Id.

It is clear that the district court committed an error in 

failing to consider the section 3553 factors. While the 

district court has broad discretion to impose a particular 

sentence, “[a] district court commits a significant procedural 

error where it ‘fail[s] to adequately explain the chosen 

sentence.’”

(citations omitted).

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

Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51 

(2007)). “This requirement applies ‘[r]egardless of whether the 

district court imposes an above, below, or within-Guidelines 

sentence.’” Id. (quoting United States v. Carter, 564 F.3d 325, 

330 (4th Cir. 2009)). Though “[a] court need not be as detailed 

or specific when imposing a revocation sentence,” Thompson, 595 

F.3d at 547, here, the district court provided no valid basis 

for its sentence. Instead, it simply came to the conclusion, 
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without any evidence, that Williams “probably hung out with” 

particular people over the years. The court’s speculative 

comments fall far short of its obligations under 18 U.S.C. 

§ 3583(e), which required the court to make an individualized 

assessment of Williams using the section 3553 factors before 

revoking his supervised release.

The error was also “plain” in so far as it violated 

established law. “An error is plain ‘where the law at the time 

of trial was settled and clearly contrary to the law at the time 

of appeal.’” United States v. Hughes, 401 F.3d 540, 547 (4th 

Cir. 2005) (quoting Johnson v. United States

It is indeed true that the law as it relates to 

federal sentencing is in a state of flux . . . . 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 

, 520 U.S. 461, 468

(1997)).

United States v. Moulden, 478 F.3d 652, 

657 (4th Cir. 2007). Given how clearly settled this 

requirement is, even as it applies to revocation 

sentences, the district court’s failure to provide any 

reasons for its sentence contravened clear circuit 

precedent . . . .

Thompson, 595 F.3d at 547-48 (noting that the analysis of 

“plain” in “plain error” is the same as that of “plainly” in 

“plainly unreasonable”). Thus, the district court had adequate 

notice that this form of cursory sentencing was improper.
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Finally, having established that the district court 

committed an error and that it was plain, this Court must 

determine whether the error also implicated Williams’ 

“substantial rights.” Olano, 507 U.S. at 732. An error affects

substantial rights if it was prejudicial or affected the outcome 

of a case. Hughes, 401 F.3d at 548. The burden to prove that 

the error was prejudicial falls on the defendant, Williams. Id.

Williams alleges that the dubious comments of the district 

court were prejudicial. Yet, at the revocation hearing, neither 

Williams nor his counsel made any arguments about the 

sufficiency of the court’s findings or requested an alternative 

sentence. The court provided Williams and his counsel with

opportunities to speak prior to the imposition of the sentence. 

In response, Williams stated his intention to accept “[w]hatever 

consequence I’ve got to face, I’m ready to own up to it.” 

Defense counsel also did not request a within or below 

guidelines sentence or even mention the section 3553 factors. 

Worse, counsel utterly failed to refer to Williams’ involvement

in the DROPS program. Under the terms of that program, 

Williams’ second drug use violation would have led to only five

days in prison, rather than twenty-four months. Thereafter, the 

court sentenced Williams to twenty-four months of imprisonment, 

a within guidelines sentence and the only sentence proposed by 

either side at the hearing. See United States v. Montes-Pineda, 
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445 F.3d 375, 379 (4th Cir. 2006) (“[A] sentence within a 

properly calculated advisory Guidelines range is presumptively 

reasonable.”). At the end of the hearing, following both the 

court’s unfounded statements and the sentencing, defense counsel 

again failed to raise an objection. Counsel merely closed by 

thanking the court.

The unsubstantiated comments of the district court were 

unfortunate and make this case somewhat troubling.

Nevertheless, in light of Williams’ own seeming willingness to 

accept any sentence, defense counsel’s failure to ask for an 

alternative sentence, the government’s unrebutted discussion of 

Williams’ violent criminal history and the court having provided 

Williams with a within guidelines sentence, it would be far too 

speculative for us to find that the district court’s comments 

prejudicially affected Williams’ sentencing. See Lynn, 592 F.3d 

at 580.

Although we do find that the district court plainly erred,

Williams’ inability to show that the court’s error affected his 

substantial rights is fatal to his appeal. Therefore, we must

AFFIRM.