UNITED STATES of America, Plaintiff-Appellee, v. Barry Glen THOMPSON, a/k/a Barry G. Thompson, Defendant-Appellant, 595 F.3d 544

Vacated and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Judge MICHAEL joined. Judge NIEMEYER wrote a dissenting opinion. OPINION GREGORY, Circuit Judge: The defendant, Barry Glen Thompson (“Thompson”), challenges the district court’s revoking his supervised release and sentencing him to eighteen-months imprisonment. Thompson claims the district court’s failure to explain its chosen sentence was plainly unreasonable. We agree, vacate Thompson’s sentence, and remand for a new sentencing hearing. I.

On January 20, 2009, the United States Probation Office petitioned to revoke Thompson’s supervised release. The petition alleged that Thompson had been arrested on two counts of battery on, and obstruction of, a police officer and that he had possessed methamphetamine. The petition also alleged that Thompson had twice previously violated his supervised-release terms by testing positive for narcotics. At his revocation hearing, Thompson conceded that the government could prove the charged violations.

The district court then determined that under the applicable, non-binding policy tables, Thompson faced between twelve- and eighteen-months imprisonment. Neither party objected to the calculation. The court next gave each party an opportunity to argue for the appropriate sentence. The government emphasized that Thompson had committed battery on two police officers and had done so at 2:00 a.m., which it believed was relevant. Counsel for Thompson argued that it was his first violation, he had minor children, and that he had been gainfully employed since his initial release.

Thompson also argued that he had notified the police of loose ammunition in the squad car following his arrest. Given this, Thompson sought a six-month prison term, followed by supervised release. The court then sentenced Thompson to eighteen-months imprisonment followed by supervised release. Only when defense counsel requested that Thompson be allowed to self-report to prison did the court note that Thompson was probably not a flight risk, but that based on Thompson’s history, conduct, and characteristics, the court could not say that he was not a danger to the community. Thompson timely appealed. II.

This Court reviews whether or not sentences imposed upon revocation of supervised release are within the prescribed statutory range and are not “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 439 (4th Cir.2006). The government argues that plain-error review applies here because Thompson never objected below to the adequacy of the district court’s sentencing explanation. As we explained in our recent decision United States v.

Lynn, 592 F.3d 572 (4th Cir.2010), though, a defendant need only ask for a sentence outside the range calculated by the court prior to sentencing in order to preserve his claim for appellate review. Id. at 578, Because Thompson did so here by requesting a six-month sentence, rather than a sentence within the advisory range calculated by the district court, we decline to apply plain-error review and proceed to review whether his sentence is plainly unreasonable. III. When reviewing whether a revocation sentence is plainly unreasonable, we must first determine whether it is unreasonable at all. United States v.

Moulden, 478 F.3d 652, 656 (4th Cir.2007); Crudup, 461 F.3d at 438. Thompson claims that his sentence is proeedurally unreasonable because the district court failed to provide an adequate explanation for its chosen sentence. We agree. a. Revocation sentences are governed by non-binding, policy statements in the Sentencing Guidelines Manual. U.S. Sentencing Guidelines Manual § 7(A)(1). Though a district court must consider the

Chapter Seven policy statements and other statutory provisions applicable to revocation sentences, the court has broad discretion to impose a particular sentence. Crudup, 461 F.3d at 438; see Moulden, 478 F.3d at 656. That discretion has some limits. A district court commits significant procedural error where it “fail[s] to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This requirement applies “[rjegardless of whether the district court imposes an above, below, or within-Guidelines sentence.” United States v.

Carter, 564 F.3d 325, 330 (4th Cir.2009) (internal quotation marks omitted). 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.” Moulden, 478 F.3d at 657. The district court provided no such statement here. Instead, it simply stated: “It’s the judgment of the Court the defendant be committed to the custody of the Federal Bureau of Prisons for a term of 18 months.” J.A. 42.

We may be hard-pressed to find any explanation for within-range, revocation sentences insufficient given the amount of deference we afford district courts when imposing these sentences; but a district court may not simply impose sentence without giving any indication of its reasons for doing so. Moulden, 478 F.3d at 657. Were we to hold otherwise, district courts could effectively thwart appellate review of any within-range revocation sentences they impose. See Gall, 552 U.S. at 50, 128 S.Ct. 586.

The government argues that the district court’s statement after sentencing Thompson made clear its reasons for imposing that sentence. When Thompson requested voluntary surrender, the district court stated, “[bjased on the character and the conduct and history of the defendant, I can’t find that there’s not a danger to the community, although I doubt there’s a risk of flight.” J.A. 43. This statement, the government claims, shows that the court adequately considered the relevant sentencing factors when imposing sentence. We decline to reach such a speculative conclusion.

It is true that in some cases, a district court’s reasons for imposing a within-range sentence may be clear from context, Rita v. United States, 551 U.S. 338, 357, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), including the court’s statements to the defendant throughout the sentencing hearing. Lynn, at 584-85. But those other statements must actually relate to the imposed sentence, not some distinct, penological or administrative question. The district court’s statement here did not explain the sentence it imposed; rather, it explained the court’s reasons for not allowing voluntary surrender.

Under the circumstances, we cannot impute the district court’s reasoning for the latter to the former. The sentence was therefore procedurally unreasonable. b. Having determined that the district court’s failure to explain its chosen sentence was unreasonable, we must now consider whether it was plainly so. To determine whether a sentence is plainly unreasonable, this Court looks to the definition of “plain” used in plain-error analysis. Crudup, 461 F.3d at 439. For a sentence to be plainly unreasonable, therefore, it must run afoul of clearly settled law. See United States v.

Hughes, 401 F.3d 540, 547 (4th Cir.2005), It is indeed true that the law as it relates to federal sentencing is in a state of flux, and that this Court, like our sister circuits, is still in the process of implementing many of the Supreme Court’s recent pronouncements. See, e.g., Lynn, at 575; Carter, 564 F.3d at 330. 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 Moulden. 478 F.3d at 657.

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 and was, therefore, plainly unreasonable. c. Finally, we cannot be sure that the district court’s failure to justify the sentence imposed was harmless. For a procedural sentencing error to be harmless, the government must prove that the error did not have a “ ‘substantial and injurious effect or influence’ on the result.” Lynn, at 585 (quoting United States v. Curbelo, 343 F.3d 273, 278 (4th Cir.2003)).

Here, the government does not argue that the error was harmless, and we cannot presume that it was under these circumstances. Had the court explicitly considered Thompson’s non-frivolous argument that he deserved leniency because he had completed nearly all of his supervised release without incident, it could conceivably have given him a lower sentence. See id. IV. For the foregoing reasons, we vacate Thompson’s sentence and remand to the district court for a new hearing. VACATED AND REMANDED Citations to J.A. — refer to the Joint Appendix filed by the parties upon appeal.