UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4841

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

ROBERT MICHAEL GEORGE,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at 

Statesville. Graham C. Mullen, Senior District Judge. (5:18-cr-00023-GCM-DCK-1)

Argued: September 21, 2021 Decided: November 24, 2021

Before FLOYD, THACKER, and HARRIS, Circuit Judges.

Vacated and remanded with instructions by unpublished per curiam opinion.

ARGUED: Teresa Kwong, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Appellant. Joshua B. Carpenter, FEDERAL DEFENDERS OF 

WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellee. ON 

BRIEF: Eric S. Dreiband, Assistant Attorney General, Alexander V. Maugeri, Deputy 

Assistant Attorney General, Tovah R. Calderon, Appellate Section, Civil Rights Division, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; R. Andrew Murray, 

United States Attorney, Charlotte, North Carolina, Amy Ray, Assistant United States 

Attorney, Kimlani Ford, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Asheville, North Carolina, for Appellant. Anthony Martinez, 
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Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury convicted Robert Michael George, a former sergeant with the City of Hickory 

Police Department, of using objectively unreasonable force against a pretrial detainee, 

Chelsea Doolittle, depriving her of the constitutional right to due process of law, in 

violation of 18 U.S.C. § 242. The presentence report calculated an advisory guidelines 

sentencing range for George’s crime of 70 to 87 months of imprisonment, but the district 

court sentenced him to a downward variance term of four years’ probation. The 

Government appeals, arguing that George’s sentence is procedurally and substantively 

unreasonable. Because the district court grounded its reasoning for the chosen sentence in 

conclusions contrary to the evidence and the jury’s verdict, we cannot uphold the sentence 

as either procedurally or substantively reasonable. Accordingly, we vacate the sentence 

and remand to a different judge for resentencing.

I.

The events giving rise to this case began on November 11, 2013, when Lieutenant 

Vidal Sipe, also of the City of Hickory Police Department, came across an illegally parked 

car that was blocking the flow of traffic in downtown Hickory, North Carolina. He 

confronted two women who approached and entered the car and smelled alcohol emanating

from their persons and from inside the car. At that point, Sipe radioed for another officer 

to bring a breathalyzer test.

George responded to Sipe’s radio request and arrived at the scene. Meanwhile, one 

of the women, Chelsea Doolittle, moved into the driver’s seat of the car. Sipe ordered 
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Doolittle out of the car, but she became argumentative and noncompliant. George 

eventually intervened to help Sipe get Doolittle out of the car. The officers arrested 

Doolittle, placing her in handcuffs.

George then drove Doolittle to the police station. During the drive, Doolittle 

became verbally abusive toward George. Upon their arrival, George parked the car, opened 

Doolittle’s door, and asked her to step out. When Doolittle refused to get out of the car 

after multiple demands, George reached into the car, grabbed a still-handcuffed Doolittle, 

and thrust her face-down on the pavement. George then retrieved Doolittle’s cap from the 

patrol car, picked up Doolittle from the ground, and escorted her into the police station. A 

surveillance camera outside the police station recorded the full incident. As a result of this 

interaction, Doolittle suffered a broken nose, serious dental injuries requiring multiple 

surgeries, a concussion, and facial lacerations. She now suffers from memory loss, panic 

attacks, and anxiety.

A federal grand jury in the Western District of North Carolina returned a two-count 

indictment against George, charging him (1) with deprivation of rights while acting under 

color of state law in violation of 18 U.S.C. § 242, alleging that George willfully deprived 

Doolittle’s right as a pretrial detainee to be free from an officer’s unreasonable use of force

(Count I); and (2) obstruction of justice in violation of 18 U.S.C. § 1519 (Count II). 

At trial, the government introduced the surveillance video footage described above, 

medical testimony regarding Doolittle’s injuries, testimony from George’s supervisor, and 

testimony from George’s use-of-force trainer that George’s actions were inconsistent with 

his training. George and his expert witness testified that he simply lost his grip while he 
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was pulling Doolittle out of the patrol car and that Doolittle fell because her body went 

limp. 

With respect to the use-of-force charge in Count I, the district court instructed the 

jury that it must find beyond a reasonable doubt (1) that George “acted under color of law,” 

(2) that George deprived Doolittle of “the right of a pretrial detainee to be free from use of 

objectively unreasonable force by a law enforcement officer,” and (3) that George “acted 

willfully.” J.A. 458. With respect to willfulness, the district court explained that “[a] 

person acts willfully if he acts voluntarily and intentionally with the specific intent to do 

something the law forbids.” J.A. 461. The court further told that jury that “reckless 

disregard of a person’s constitutional rights is evidence of specific intent to deprive that 

person of those rights.” J.A. 463. The jury found George guilty on the use-of-force charge 

in Count I and acquitted him on the obstruction-of-justice charge in Count II.

In a presentence investigation report (PSR), a probation officer wrote that George 

“reach[ed] into the car with both arms and grab[bed] Ms. Doolittle” and “lift[ed] Ms. 

Doolittle out from the back seat and slam[med] her down, face first, onto the driveway 

while her hands [were] still handcuffed behind her back.” J.A. 563. The probation officer

applied a five-level increase to the base offense level for aggravated assault because 

George’s actions caused serious bodily injury to Doolittle. The probation officer also 

added six points because the offense was committed under color of law, two points because 

Doolittle was restrained during the course of the offense, and two points for obstruction of 

justice. These enhancements resulted in a total offense level of 29. With a criminal history 

category of I, the Guidelines recommended 78 to 108 months of imprisonment. George 
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objected to the five-level increase for aggravated assault and the two-level increase for 

obstruction of justice. 

At sentencing, the district court overruled George’s objection to the five-level 

increase for aggravated assault, agreeing with the government that Doolittle’s injuries 

qualified as a serious bodily injury. The district court sustained George’s objection to the 

two-level increase for obstruction of justice. Based on those conclusions, the district court 

calculated the total offense level to be 27, resulting in a Guidelines range of 70 to 87 months 

of imprisonment. The government sought a sentence at the low end of the Guidelines 

range. George requested a non-custodial probationary sentence as a variance.

In the course of pronouncing George’s sentence and analyzing the 18 U.S.C.

§ 3553(a) factors, the court rejected the description of the offense set forth in the PSR. See

J.A. 510 (“[T]he statement of the offense in the presentence report is not correct and at no 

time did Mr. George intend to injure or otherwise harm Ms. Doolittle.”). The court stated 

its view that “Mr. George did not lift Ms. Doolittle out from under the backseat and slam 

her down face-first on the driveway.” J.A. 510. Instead, the court found it “obvious” from 

the surveillance video that George “lost his grip” on Doolittle and that Doolittle then fell 

to the ground either because of “the force with which [George] pulled her out of the car, or 

perhaps because of her inebriated condition she was unable to keep her balance and fell 

forward.” J.A. 510–11. According to the court, the incident was “almost accidental . . .

not quite but almost.” J.A. 511. In the court’s view, George’s actions led to as “close to 

an accidental injury . . . as you can get and still wind up violating that statute.” J.A. 515.
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As part of its analysis of the § 3553(a) factors, the court noted that George had been 

a law-abiding citizen leading up to his arrest, he had already suffered by losing his job,

police pension, and legal rights to bear arms and vote, he would be required to pay 

$20,492.92 in restitution, and he endured a lengthy delay awaiting prosecution while on 

bond. The court characterized George as “basically a subject of the government and not a 

citizen anymore.” J.A. 512–13. The court reasoned that George’s behavior under 

supervision reflected his “good character” and that the delay in proceedings reinforced that 

there is “little need to do anything to deter him or anyone else employed as a police officer 

from committing crimes.” J.A. 513–14. Distinguishing George’s conduct from merely 

one other case, which involved intentional, extremely violent, and widely publicized police 

brutality, the court stated that the difference between the cases was “startling.” J.A. 511 

(citing Koon v. United States, 518 U.S. 81 (1996)). In sum, the court found that the offense 

level “greatly overstates the seriousness of the offense.” J.A. 512.

Based on the court’s view of the incident and its analysis of the § 3553(a) factors—

and over the government’s objection—the court sentenced George to a variance of four 

years’ probation, adding that it would “com[e] out in the same place” based on its view of 

the § 3553(a) factors even if its Guidelines calculation was “wrong.” J.A. 509–10. The 

district court entered its judgment and accompanying statement of reasons, from which the 

government appealed.

While this appeal was pending, George filed a pro se letter requesting early 

termination of his probation. On June 11, 2021—three days after George’s letter was 

docketed and before the government filed a response—the district court granted George’s 
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request for early termination, effective immediately. The district court’s order contained 

no analysis or discussion of the § 3553(a) factors and simply granted the motion for good 

cause shown.

II.

The government appeals on the basis of both procedural and substantive 

reasonableness. We consider each in turn.

A.

“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an 

abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside, 

or significantly outside the [Sentencing] Guidelines range.’” United States v. Nance, 957 

F.3d 204, 212 (4th Cir. 2020) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). 

Procedurally, we first determine “whether the district court committed any significant

procedural error, such as improperly calculating the Guidelines range, failing to consider 

the § 3553(a) factors, or failing to adequately explain the chosen sentence—including an 

explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. A sentence 

is based on clearly erroneous facts, and is therefore procedurally unreasonable, when the 

court’s explanation “runs counter to the weight of the evidence [at trial] and the jury’s 

verdict.” United States v. Curry, 461 F.3d 452, 460–61 (4th Cir. 2006); accord United 

States v. Hourihan, 66 F.3d 458, 465 (2d Cir. 1995) (concluding that a sentencing court’s 
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“decision to sentence based on its view of the evidence rather than the jury’s is reversible 

error”); United States v. Weston, 960 F.2d 212, 218 (1st Cir. 1992).

The government maintains that the district court’s statement that George’s conduct 

was “almost accidental” directly contradicts the jury’s implicit finding that George willfully

violated Doolittle’s constitutional rights. J.A. 511. Additionally, the government argues 

that the district court’s finding that it was “obvious” from the surveillance video that 

George “lost his grip” on Doolittle, which was George’s primary defense, is contrary to the 

weight of the evidence presented at trial. J.A. 510–11. Both assertions are borne out in 

the record.

The district court based its sentence on its view that George acted “almost 

accidentally.” J.A. 511. Yet the jury convicted George of using objectively unreasonable 

force against Doolittle, in violation of 18 U.S.C. § 242, which requires the government to 

show “that the defendant (1) willfully (2) deprived another individual of a constitutional 

right (3) while acting under color of law.” United States v. Cowden, 882 F.3d 464, 474 

(4th Cir. 2018) (emphasis added) (citation omitted). Willfulness, in turn, requires a 

showing that “the defendant acted ‘with the particular purpose of violating a protected right 

made definite by the rule of law or recklessly disregard[ed] the risk that [he] would do so.’” 

Id. (alterations in original) (quoting United States v. Mohr, 318 F.3d 613, 619 (4th Cir. 

2003)). Because the jury found George guilty of violating § 242, the jury necessarily found 

that he violated Doolittle’s constitutional rights either intentionally or with a reckless 

disregard. See id.
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In light of this mens rea standard, which the district court correctly stated in its 

instructions to the jury, the district court’s view that George “almost accidentally” violated 

Doolittle’s constitutional rights “runs counter to . . . the jury’s verdict” and is therefore 

procedurally unreasonable. See Curry, 461 F.3d at 460–61. Relying on state law, George 

contends that mental states associated with unlawful conduct constitute a “rising continuum 

of blameworthiness” on which “specific intent to inflict the harm” is “more blameworthy” 

than “reckless indifference to a harmful conduct.” See Manokey v. Waters, 390 F.3d 767, 

771 (4th Cir. 2004) (quoting Williams v. State, 641 A.2d 990, 1010 (Md. Ct. Spec. App.

1994)). Thus, in George’s view, the district court’s comment that George acted “almost 

accidentally” means that the district court adopted the middle-ground view of George’s 

mens rea—that George’s conduct amounted to recklessness—which would be consistent 

with the jury’s verdict.

But the district court’s comment that George’s conduct led to as “close to an 

accidental injury . . . as you can get and still wind up violating that statute” is difficult to 

square with the jury’s finding that George either intentionally or recklessly violated 

Doolittle’s rights. See J.A. 515. At a minimum, the jury’s finding that George acted 

willfully means that his actions were “deliberate” rather than “unwitting conduct.” See 

Bryan v. United States, 524 U.S. 184, 191 (1998). In espousing the view that George acted 

“almost accidentally,” the district court based George’s sentence on its belief that George 

acted unwittingly—or at least “almost” so—which is not consistent with the jury’s 

willfulness finding. 
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But we need not rely wholly on this mens rea argument, because the district court’s 

findings, when viewed as a whole, are also inconsistent with the weight of the evidence 

presented at trial and impossible to reconcile with the facts implicitly adopted by the jury. 

The district court’s comment that it is “obvious” from the surveillance video that George 

“lost his grip” on Doolittle is clearly erroneous. See J.A. 510–11. On our viewing, the 

video shows George pull Doolittle out of the patrol car and slam her on the pavement. It 

simply does not support the district court’s view that George “lost his grip” on Doolittle. 

Doolittle didn’t slip, and nor did George. The courts have already settled this exact 

question of how such video evidence should be taken into account, in a § 1983 case: when 

a “videotape quite clearly contradicts the version of the story” adopted by a lower court, 

that court erred in failing to view “the facts in the light depicted by the videotape.” See 

Scott v. Harris, 550 U.S. 372, 378–81 (2007); see also United States v. Kehoe, 893 F.3d 

232, 237 (4th Cir. 2018) (citing Scott in a criminal case).

Furthermore, the district court’s view that George simply “lost his grip” on Doolittle 

almost entirely mirrors George’s defense at trial, which the jury rejected in rendering its 

guilty verdict on the use-of-force count. George argues that the jury could have rejected 

both the government’s theory of the case (that George intentionally slammed Doolittle on 

the pavement) and George’s theory (that he lost his grip on Doolittle, causing her to fall to 

the pavement) in favor of a “middle-ground finding[].” Response Br. at 21. But the district 

court did not advance a middle-ground view of the facts. Instead, it adopted George’s 

theory in its entirety. The jury could not have adopted George’s theory while also rendering 

a guilty verdict on the use-of-force count.
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Nor is the court’s view of the evidence consistent with the remaining evidence 

presented at trial. For example, George’s use-of-force trainer, Yoder, opined that the 

surveillance video showed George “grab[]” Doolittle, “forcefully pull[] her from the 

vehicle,” and “throw[] [her] to the ground.” J.A. 256. In Yoder’s view, this conduct “was 

unnecessary and unreasonable.” J.A. 262. And George’s supervisor, Captain Gary Lee, 

testified that George “basically threw [Doolittle] on the ground,” prompting him to refer 

the matter for investigation. J.A. 141. The district court’s finding that “Mr. George did 

not lift Ms. Doolittle out from under the backseat and slam her down face-first on the 

driveway,” on which it based its 100% downward variance, runs counter to the weight of 

the evidence at trial and the jury’s verdict. J.A. 510. If a lower court “bas[es] its decision 

to vary downward in large part” on a view of the evidence that “contradict[s] the weight of 

the evidence and the verdict,” then the sentence is procedurally unreasonable. Curry, 461 

F.3d at 460–61. Such is the case here.

George also argues, in the alternative, that any procedural error is harmless, because 

the court also based its downward variance on George’s “aberrant behavior” in this case 

and otherwise sterling record as a police officer and law-abiding citizen. See Response Br. 

at 26–27. However, a procedural error is harmless only when the error “did not have a 

substantial and injurious effect or influence on the result.” United States v. Lynn, 592 F.3d 

572, 585 (4th Cir. 2010) (cleaned up). Here, as noted above, the district court’s incorrect 

view of the evidence colored nearly every aspect of its sentencing analysis, including its 

analysis of the § 3553(a) factors and cannot be considered harmless.
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B.

We typically consider the substantive reasonableness of a sentence only if the 

sentence is procedurally sound. United States v. Blue, 877 F.3d 513, 517 (4th Cir. 2017); 

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (reviewing court does not reach 

substantive reasonableness when it finds a significant procedural flaw). This Court has, 

however, reviewed a sentence for substantive reasonableness even after finding procedural 

deficiencies, and here we will conduct a substantive reasonableness analysis to address 

issues that may arise on remand. See United States v. Engle, 592 F.3d 495, 504 (4th Cir. 

2010) (vacating probation sentence as both procedurally and substantively unreasonable). 

In considering the substantive reasonableness of an imposed sentence, “the court 

will ‘take into account the totality of the circumstances, including the extent of any variance 

from the Guidelines range.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) 

(quoting Gall, 552 U.S. at 39). The totality of the circumstances calculus “demands that 

we proceed beyond a formalistic review of whether the district court recited and reviewed 

the § 3553(a) factors” so that we may “ensure that the sentence caters to the individual 

circumstances of a defendant, yet retains a semblance of consistency with similarly situated 

defendants.” Id. at 167 (Gregory, J., concurring) (citing Gall, 552 U.S. at 49–50). “The 

words ‘abuse of discretion’ cannot be a legal incantation invoked by appellate courts to 

dispel meaningful substantive review of a district court’s sentence.” Id. (Gregory, J., 

concurring). We keep in mind the principles that “a major departure should be supported 

by a more significant justification than a minor one.” Gall, 552 U.S. at 50. And 
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“[s]entencing courts remain obligated not to give excessive weight to any relevant factor 

and to impose a sentence which effects a fair and just result in light of the relevant facts 

and law.” United States v. Howard, 773 F.3d 519, 531 (4th Cir. 2014) (cleaned up). We 

proceed, then, to assess the district court’s rationale for the sentence and review its 

application of the facts to the Guidelines and § 3553(a).

Performing that assessment, we find that the district court failed to sufficiently 

justify its significant downward variance. In its reasoning, the district court relied heavily 

on its view, counter to the weight of the evidence and George’s conviction, that the incident 

was “almost accidental.” Through the prism of that impermissible belief, the district court 

determined that the Guidelines range, reflecting the appropriate sentence for an officer that 

willfully deprives someone of their constitutional rights, did not apply to George because 

he was not in that category of offender. Other circuits have vacated sentences as 

substantively unreasonable in instances in which the trial court took an impermissible view 

of the facts, and that is the predominant reason for our holding as to substantive 

reasonableness today. See, e.g., United States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008) 

(holding a sentence substantively unreasonable because the court’s reasoning “rel[ied] on 

facts directly inconsistent with those found by the jury beyond a reasonable doubt”).

Further, the district court gave excessive weight to its favorable perceptions of 

George as a former police officer, and in turn the post-conviction consequences for George,

dismissing other considerations set forth in the Guidelines. However, “a defendant’s status 

as a law enforcement officer is more akin to an aggravating as opposed to a mitigating 

sentencing factor, as criminal conduct by a police officer constitutes an abuse of public 
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position.” United States v. Thames, 214 F.3d 608, 614 (5th Cir. 2000). Rather than 

acknowledge an abuse of public trust, the court relied heavily on its positive perception of 

George as a former law enforcement officer in its discussion of the first and second 

§ 3553(a) factors, failing to significantly weigh the seriousness of the crime. As to the 

goals of the § 3553(a) factors to “promote respect for the law,” “provide just punishment,” 

“afford adequate deterrence”, and “protect the public,” the court spoke first and foremost 

of the “total life changes to Mr. George,” enumerating collateral consequences, including 

George’s loss of his job and pension, as sufficient deterrent to justify the variance. J.A. 

512. But such outcomes are common in § 242 cases and do not justify this significant 

variance to a probationary sentence. Indeed, “it is not unusual for a public official who is 

convicted of using his governmental authority to violate a person’s rights to lose his or her 

job and to be barred from future work in that field.” Koon, 518 U.S. at 110. That reasoning 

does not provide the “significant justification” necessary for such a substantial departure. 

Gall, 552 U.S. at 50. 

By way of explanation for why its sentence did not violate the goal of avoiding 

“unwarranted sentence disparities among defendants,” the district court did make an

attempt to distinguish George’s conduct from that of the officers in Koon, which it 

determined to be a significant gulf. § 3553(a)(6). But that attempt to distinguish abandons 

the principle that “[p]ublic officials convicted of violating § 242 have done more than 

engage in serious criminal conduct; they have done so under the color of the law they have 

sworn to uphold.” Id. at 111. By giving a cursory consideration of the need to deter public 

officials from violating individual rights—with mention only of a notably violent case—
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and focusing instead on George’s perceived low risk of future criminal conduct, the court 

did not adequately weigh the 3553(a) factors. It thus reached a substantively unreasonable 

sentence.

III.

Accordingly, for the foregoing reasons, we hereby vacate the sentence and remand 

for resentencing before a different district judge.

VACATED AND REMANDED WITH INSTRUCTIONS