United States of America v. CHARLIE O’BRYANT TERRY, a/k/a Breezy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4482
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLIE O’BRYANT TERRY, a/k/a Breezy,
Defendant - Appellant.
No. 18-4483
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLIE O’BRYANT TERRY, a/k/a Breezy,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of North Carolina,
at Raleigh. W. Earl Britt, Senior District Judge. (5:17-cr-00153-BR-1; 5:07-cr-00055-
BR-1)
Submitted: May 31, 2019 Decided: June 20, 2019

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Before MOTZ, AGEE, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
R. Clarke Speaks, Wilmington, North Carolina, for Appellant. Robert J. Higdon, Jr.,
United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney,
Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
After Charlie O’Bryant Terry pleaded guilty to obstruction of justice and
possession of a firearm by a convicted felon, the district court sentenced him to 240
months’ imprisonment, plus a consecutive 24-month term for violating the supervised
release imposed on a prior federal conviction. On appeal from both judgments, Terry
contends that the district court ignored the nonfrivolous arguments he raised at the
combined sentencing and revocation hearing. For the reasons discussed below, we vacate
both sentences and remand for resentencing.
We review a defendant’s sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In evaluating the procedural
reasonableness of a sentence, we must consider whether the district court adequately
explained its chosen sentence. United States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017).
Moreover, “where the defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence than that set forth in the advisory Guidelines, a district
judge should address the party’s arguments and explain why he has rejected those
arguments.” United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (brackets and
internal quotation marks omitted). “A sentencing court’s explanation is sufficient if it,
although somewhat briefly, outlines the defendant’s particular history and characteristics
not merely in passing or after the fact, but as part of its analysis of the statutory factors
and in response to defense counsel’s arguments for a downward departure.” Blue, 877
F.3d at 519 (brackets and internal quotation marks omitted). Conversely, a court’s failure

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to address a defendant’s nonfrivolous sentencing arguments renders the resulting
sentence procedurally unreasonable. Id.
The parties dispute the district court’s handling of two of Terry’s mitigation
arguments. First, Terry, who committed the underlying offenses just months after his
release from a lengthy prison term, asserted that the Bureau of Prisons failed to facilitate
his reintegration into society by neglecting to place him in a halfway house upon release.
Second, while acknowledging that he had not earned a substantial assistance motion,
Terry nevertheless asked the district court to take into account his efforts to cooperate.
Although the district court addressed several of the 18 U.S.C. § 3553(a) (2012) factors
and stated that it had considered the entire record, the court failed to address either of
these arguments, let alone explain why they were unpersuasive. See United States v.
Ross, 912 F.3d 740, 745 (4th Cir. 2019) (“[T]he district court cannot meet its
responsibility through broadly referring to the § 3553(a) factors in lieu of addressing the
parties’ non-frivolous arguments.”).
In addition, based on our review of the record, we conclude that neither argument
was frivolous. The halfway house argument invited the district court to examine Terry’s
personal history and characteristics, as well as the circumstances leading up to the instant
offenses. See 18 U.S.C. § 3553(a)(1). And, although the Government claims otherwise,
the court was free to consider Terry’s cooperation in the course of applying the § 3553(a)
factors even in the absence of a substantial assistance motion. See United States v.
Robinson, 741 F.3d 588, 599 (5th Cir. 2014) (collecting cases “holding that a sentencing
court has the power to consider a defendant’s cooperation under § 3553(a), irrespective of

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whether the Government files a [substantial assistance] motion”). Finally, the
Government makes no attempt to carry its burden of demonstrating that the court’s
procedural errors are harmless. See Ross, 912 F.3d at 745.1 In any event, we find it
plausible that the court might have imposed lower sentences had it specifically addressed
Terry’s nonfrivolous mitigation arguments, though we express no opinion as to the
sentences that should be imposed on remand. Id.2
Accordingly, we vacate both sentences and remand for resentencing. 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.
VACATED AND REMANDED
1 After the parties had the opportunity to present evidence and argue, the district
court imposed both the conviction and revocation sentences. The Government maintains
that Terry’s mitigation arguments pertained only to the conviction sentences and that he
made no nonfrivolous arguments with regard to his revocation sentence. Given the
nature of the joint hearing, however, we assume that the court understood the parties’
proffered evidence and arguments to bear on the appropriate sentences for both the
convictions and the supervision revocation. Thus, we disagree with the Government’s
assertion that Terry failed to present any nonfrivolous arguments concerning his
revocation sentence.
2 In light of our determination that the district court’s procedural errors were not
harmless, we do not reach Terry’s challenge to the substantive reasonableness of his
sentences. See Blue, 877 F.3d at 522.

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