**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 09**  **- 4817** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v.
T HEODUS WILLIAMS , Defendant

- Appellant
.

Appeal from the United States District Court for the Eastern Di strict of North Carolina , at Raleigh
. Terrence W. Boyle , District Judge. ( 5 : 96

- cr - 00 109

- BO

- 2 )
Argued : September 2 4 , 2010 Decided: November 12 , 2010

Before N IEMEYER, MOTZ, and GREGORY , Circuit Judges.

Affirmed by un published per curiam opinio n .

**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, Federa l 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Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Theodus Williams appeals a twenty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 w hen , rather than relying on 18 U.S.C. § 3553 factors, it made an unfounded statement about who Williams likely associated with in the past. F or the reasons that follow, w e must affirm Williams’ sentence
. In 19 96, Williams was convicted of being a felon i n possession of a firearm under 18 U.S.C. § 922(g) and aid ing 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 1 3 , 2009, the district court continued Williams on supervision after he received traffic violations for driving with a revoked license and having tinted window s . On June 9, 2009, Williams tested positive for coca ine use and admitted t hat he had used the drug three days earlier. Based on th is test and his earlier traffic violations, Williams’ probation officer p etition ed the district court for modification s t o the terms of his supervision
. Nine days later,

on Jun e 18, t he court granted the petition. Williams was ordered to spend two days in prison and to enroll in the3 Surprise Urinalysis Program for an additional ninety days
. Williams was also ordered to participate in the Drug Reduction on Probation and Supervi sed Release (“DROPS”) pro gram . Once enrolled in the DROPS program, a n 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 can not 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 infr actions contained in the June 18 petition, th is 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 tim es in the last month
. All three violation s 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 warran t for Williams’ arrest
.4 At the July 29, 2009 , revocation hearing before the dis trict court , William s admitted to violations ( 2 ) and ( 3 ), and did not contest violation ( 1 ). William s a lso a pologized 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 t hen informed the court of Williams’ “really bad record,” involving drugs and the shooting of at least two people . After informing t he court of the statutory guidelines range, twenty

- one to twenty

- four months, the government asked for the maximum. T he cou rt then asked defense counsel if there
was “ A nything else? ” Defense counsel responded that William s had been arrested with only a small canister holding cocaine residue for personal use, had been work ing , was thirty

- nine years old, and was living in Hende rson . 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 ov er 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.5 The Court: Yeah. Okay. You’re 39. Anyway, I’ll give him the 24 months. The court then entered a judgment agai nst Williams , but said nothing further about the sentence. The court’s statements about Williams’ possible past association s with Lance Morrison and the “Hickmans” in Henderson, North Carolina were groundless. The comments did not appear to be based on a ny facts in the record or any evidence presented by the part ies . Nor were the y relevant to the court’s obligations under 18 U.S.C. § 3583( e ), which require d it t o

asse s s Williams’ revocation sentence using the section 3553 factors.
N onetheless, n either W illiams nor his counsel requested a sentence within the guidelines range, sought a sentence that departed from the guidelines range, or even mentioned his court

ordered enrollment in the DROPS program. “[R]evocation sentences should be reviewed to determi ne 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). Howe ver, 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, we6 apply the more rigorous p lain error standard of review. Uni t ed States v. Lynn , 592 F.3 d 572, 577

- 80 (4th Cir. 2010). The plain error standard of review is a demanding one. The defendant must identify an error, demonstrate that t he 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 d o detect a plain error, we must refrain from reve rsing the district court unless the error will “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” Id. It is clea r 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 ad equately explain the chosen
sentence.’” ( citations omitted)
.

United States v. Thompson , 595 F.3d 544, 54 7 (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, o r 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 , h ere, the district court prov ide d no valid basis for its sentence. Instead, it simply came to the conclusion,7 without any evidence, that Williams “probably hung out w ith” particular people over the years. The court’s speculati ve
comments fall far short of its obligations under 18 U. S.C. § 3583(e ) , which required t he 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 establish ed law. “ An error is plain ‘ wher e 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 , 47 8 F.3d 652, 657 (4th Cir. 2007)
. Given how clearly settled this requirement is, even as it applies to revocatio n sentences, the district court’ s failure to provide any reasons for its sentence co ntravened clear circuit precedent
. . . . Thompson , 595 F.3d at 547

- 48 ( n oting that the analysis of “plain” in “plain error” is the same as that of “plainly” in “plainly unreasonable” ). Th us, th e district court had adequate notice that this form of cursor y sentencing was improper.8 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 pr ejudicial falls on the defendant, Williams
. Id. Williams alleges that the dubious comments of the district

co urt were p rejudicial
. Yet, at the revocation hearing, n either William s nor his counsel made an y argument s about the sufficiency of the court’s findings or requested an alternative
sentence . The court provided William s and his counsel with opportunities t o speak prior to the imposition o f 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.”
D efense 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

- f our 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

- Pin ed a ,9 445 F.3d 375, 379 (4th Cir. 2006) ( “[A] sentence within a properly calculated advisory Guidelines range is presumptively reasonable
. ”). At the e nd of the hearing, following both the court’s unfounded statements and the sentenc ing , defense counsel again failed to raise an objection. Counse l 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 failur e 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 to o speculative f or us to find that the district co urt’s comments prejudicially a ffected Williams’ sentencing
. See Lynn , 592 F.3d at 580.
A l though we do fi nd that the district court plainly erred , William s ’ inability to show that the court’s error affected his substantial rights is fatal to his appeal. Therefore, we must

AFFIRM .