UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4497

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

MONTOYUA WALLER,

 Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:06-cr-00303-NCT-1)

Submitted: June 30, 2015 Decided: July 21, 2015

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed in part, vacated in part and remanded by unpublished 

per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., 

Kathleen A. Gleason, Assistant Federal Public Defenders, 

Greensboro, North Carolina, for Appellant. Ripley Rand, United 

States Attorney, Michael A. DeFranco, Assistant United States 

Attorney, Alena K. Baker, OFFICE OF THE UNITED STATES ATTORNEY, 

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Montoyua Waller appeals the district court’s judgment 

revoking his term of supervised release and sentencing him to a 

term of 48 months’ imprisonment. Waller’s counsel has filed a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

stating that there are no meritorious grounds for appeal but 

questioning whether the district court properly found that 

Waller had committed a Grade A violation and whether his 

48-month sentence is substantively reasonable. Waller has filed 

a pro se supplemental brief reiterating issues raised by 

counsel. At our request, counsel and the government submitted 

supplemental briefs addressing whether Waller’s sentence was 

plainly unreasonable because the district court failed to 

adequately explain its chosen sentence. For the reasons that 

follow, we affirm in part and vacate and remand in part for 

resentencing.

To revoke supervised release, a district court need only 

find a violation of a condition of release by a preponderance of 

the evidence. 18 U.S.C. § 3583(e)(3) (2012). “We review a 

district court’s ultimate decision to revoke a defendant’s 

supervised release for abuse of discretion” and its “factual 

findings underlying a revocation for clear error.” United 

States v. Padgett, ___ F.3d ___, , Nos. 14-4625, 14-4627, 

2015 WL 3561289, at *1 (4th Cir. June 9, 2015). Credibility 
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determinations made by the district court at revocation hearings 

rarely are reversed on appeal. See United States v. Cates, 613 

F.3d 856, 858 (8th Cir. 2010) (“Witness credibility is 

quintessentially a judgment call and virtually unassailable on 

appeal.” (internal quotation marks omitted)). Because the 

standard of proof is less than that required for a criminal 

conviction, the district court may find that the defendant has 

violated a condition of his supervised release based on its own 

finding of new criminal conduct, even if the defendant is 

acquitted on criminal charges arising from the same conduct, or 

if the charges against him are dropped. United States v. 

Stephenson, 928 F.2d 728, 732 (6th Cir. 1991). 

Counsel questions whether the district court properly 

found a Grade A violation based on Waller’s new criminal charges 

of felony second degree kidnapping and felony extortion. 

Counsel argues that the court failed to give any weight to the 

fact that Waller himself called the police during the offense, 

and failed to consider how this bolstered Waller’s credibility. 

Additionally, counsel argues that the district court erred in 

denying Waller’s request that the government take more exemplars 

of the victim’s handwriting, and that the court should have 

reopened the evidentiary portion of the hearing. Counsel 

further asserts that because all of the criminal charges upon 

which the supervised release violation was based were later 
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dismissed or acquitted, the finding of a supervised release 

violation should be reversed. 

We have thoroughly considered these claims in light of the 

record, including the transcript of the revocation hearing at 

which both Waller and the victim testified. We find no clear 

error in the district court’s factual findings, and that the 

government proved the Grade A violation by a preponderance of 

the evidence. Accordingly, the claims lack merit, and 

revocation of Waller’s supervised release was not an abuse of 

discretion.

We now turn to the reasonableness of Waller’s sentence. “A 

district court has broad discretion when imposing a sentence 

upon revocation of supervised release.” United States v. Webb, 

738 F.3d 638, 640 (4th Cir. 2013). “We will affirm a revocation 

sentence if it is within the statutory maximum and is not 

plainly unreasonable.” Id. (internal quotation marks omitted). 

“When reviewing whether a revocation sentence is plainly 

unreasonable, we must first determine whether it is unreasonable 

at all.” United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 

2010). A sentence is plainly unreasonable if it “run[s] afoul 

of clearly settled law.” Id. at 548.

A revocation sentence is procedurally reasonable if the 

district court adequately explains the sentence after 

considering the Sentencing Guidelines’ Chapter Seven policy 
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statements and the applicable 18 U.S.C. § 3553(a) (2012) 

factors. See 18 U.S.C. § 3583(e) (2012); Thompson, 595 F.3d at 

546-47. “Regardless of whether the district court imposes an 

above, below, or within-Guidelines sentence, it must 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) (quoting Gall v. 

United States, 552 U.S. 38, 50 (2007)). “A 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 (internal quotation marks omitted).

Counsel and Waller argued at sentencing that a sentence 

below the policy statement range was appropriate due to the 

circumstances of the offense, specifically the victim’s 

provocation of the offense conduct by stealing and abandoning 

Waller’s ex-wife’s car. Waller pointed out that he had 

befriended and mentored the victim, that he himself called 

police multiple times as the offense was taking place, and that 

he needed to stay out of prison in order to support his family. 

Waller asserted that it was the victim’s idea to attempt to 

extort money from his girlfriend to pay for the damage to the 

car and the lost keys. 
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When the court pronounced the sentence of 48 months, which 

was at the low end of the policy statement range of 46 to 52 

months, the court did not cite or track the 18 U.S.C. § 3553(a) 

factors, explain what factors had been considered, or otherwise 

articulate how it had weighed the parties’ arguments. Even for 

revocation sentences within the policy statement range, “a 

district court may not simply impose sentence without giving any

indication of its reasons for doing so.” Id. at 547. While the 

court asked questions and made comments at the sentencing 

hearing and was clearly very engaged, the court was cut off by 

Waller after pronouncing the sentence, and thereafter did not 

provide any explanation of its chosen sentence. 

Accordingly, being mindful that a sufficient explanation is 

necessary “to allow for meaningful appellate review and to 

promote the perception of fair sentencing,” Gall, 552 U.S. at 

50, we vacate the sentence and remand for resentencing. We 

express no opinion regarding the merits of Waller’s request for 

a lower sentence. In accordance with Anders, we have reviewed 

the entire record and have found no other meritorious issues for 

review. We therefore affirm all other aspects of the district 

court’s judgment. This court requires that counsel inform 

Waller, in writing, of his right to petition the Supreme Court 

of the United States for further review. If Waller requests 

that a petition be filed, but counsel believes that such a 
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petition would be frivolous, counsel may move in this court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy thereof was served on Waller. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED IN PART;

VACATED IN PART AND REMANDED