UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4505

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH WAYNE TOLBERT,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:04-cr-00059-LHT-DLH-1)

Submitted: March 16, 2010 Decided: April 12, 2010

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL 

DEFENDERS OF WESTERN NORTH CAROLINA, INC., Steven Slawinski, 

Assistant Federal Defender, Erin K. Taylor, Research and Writing 

Attorney, Charlotte, North Carolina, for Appellant. Edward R. 

Ryan, United States Attorney, Charlotte, North Carolina; Amy E. 

Ray, Assistant United States Attorney, Asheville, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kenneth Wayne Tolbert appeals the district court’s 

judgment revoking his supervised release and sentencing him to 

eighteen months’ imprisonment. On appeal, Tolbert alleges that 

the district court erred in allowing him to proceed pro se and 

that his sentence is plainly unreasonable. For the following 

reasons, we affirm the district court’s decision to revoke 

Tolbert’s supervised release, but vacate Tolbert’s sentence and 

remand for a new sentencing hearing.

“A defendant’s supervised release cannot be revoked 

without a full hearing unless the defendant knowingly and 

voluntarily admits to the allegations against [him] and waives 

[his] rights under Rule 32.1 of the Federal Rules of Criminal 

Procedure.” United States v. Farrell, 393 F.3d 498, 500 (4th 

Cir. 2005). The right to counsel at a revocation hearing is 

established by Rule 32.1(b)(2)(D). Waiver of the rights 

provided in Rule 32.1 must be knowing and voluntary, as assessed 

under the totality of the circumstances. Id.; see also United 

States v. Hodges, 460 F.3d 646, 651 (5th Cir. 2006) (holding 

that a waiver of counsel in revocation proceedings “must be 

knowing and voluntary as demonstrated either through a colloquy 

with the district court, or by the totality of circumstances, or 

both.”). After a thorough review of the record, we find that 

the totality of the circumstances indicate that Tolbert’s waiver 
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of his right to counsel and his decision to proceed pro se were 

knowing and voluntary. Id.

We find merit, however, in Tolbert’s challenge to his 

sentence. This court will affirm a sentence imposed after 

revocation of supervised release if it is within the prescribed 

statutory range and not plainly unreasonable. United States v. 

Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). When reviewing 

whether a revocation sentence is plainly unreasonable, we must 

first look to whether it is unreasonable. United States v. 

Moulden, 478 F.3d 652, 656 (4th Cir. 2007); Crudup, 461 F.3d at 

438.

A supervised release revocation sentence is 

procedurally reasonable if the district court considered the 

Chapter Seven advisory policy statement range and the 18 U.S.C. 

§ 3553(a) (2006) factors applicable to supervised release 

revocation. See 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at 

439. Because the district court here did not state that it 

considered the Guidelines’ policy statements, and did not even 

discuss, calculate, or adopt the probation officer’s actual 

advisory Guidelines range, we find that Tolbert’s sentence is 

procedurally unreasonable. 

Having found the sentence unreasonable, we must next 

assess whether the sentence is “plainly unreasonable.” To 

decide whether a sentence is plainly unreasonable, we look to 
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the definition of “plain” as used in plain-error analysis.

Crudup, 461 F.3d at 439. A plainly unreasonable sentence runs

afoul of clearly established law. See United States v. Hughes, 

401 F.3d 540, 547 (4th Cir. 2005).

Because Tolbert did not preserve this claim for 

appellate review, we review for plain error. Fed. R. Crim. P. 

52(b); United States v. Branch, 537 F.3d 328, 343 (4th Cir. 

2008), cert. denied, 129 S. Ct. 943 (2009). To receive relief 

under the plain error standard of review, Tolbert must show 

(1) there was error; (2) the error was plain; and (3) the error 

affected his substantial rights. United States v. Olano, 507 

U.S. 725, 732 (1993). As stated above, we recognize a 

sentencing error and find it to be plainly unreasonable because 

it runs afoul of clearly established law. See Crudup, 461 F.3d 

at 439. Because the sentence imposed by the district court was 

double the maximum of the advisory Guideline range as calculated 

by the probation officer, we find that the error affects 

Tolbert’s substantial rights. And we choose to exercise our 

“remedial discretion,” Olano, 507 U.S. at 736, because the 

district court’s failure to calculate and consider the Chapter 

Seven advisory sentencing range affected the fairness of the 

proceeding.

Accordingly, although we affirm the district court’s 

decision revoking Tolbert’s supervised release, we vacate his 
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sentence for a procedural sentencing error and remand for 

resentencing. By this disposition, we indicate no view as to 

the appropriate sentence to be imposed by the district court on 

remand. We emphasize in this regard that we have not evaluated 

the substantive reasonableness of the sentence imposed by the 

district court; we have concluded only that the sentencing 

procedure followed by the district court was in error. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED