United States of America v. Timothy Alan Himelright

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ALAN HIMELRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, District Judge. (3:19-cr-00028-GMG-RWT-1)
Submitted: June 10, 2022 Decided: June 22, 2022
Before DIAZ, HARRIS, and RUSHING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: Nicholas J. Compton, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Randolph
J. Bernard, Acting United States Attorney, Kimberley Crockett, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 6 --

2
PER CURIAM:
Timothy Alan Himelright was previously sentenced to 121 months’ imprisonment
and 40 years’ supervised release for distributing child pornography, in violation of
18 U.S.C. §§ 2252A(a)(2), (b)(1). On appeal, we vacated Himelright’s sentence and
remanded the case to the district court for resentencing on the ground that the court had
failed to address Himelright’s nonfrivolous argument for a downward variance. United
States v. Himelright, 823 F. App’x 138, 139-40 (4th Cir. 2020) (No. 20-4082).
On remand, the district court conducted a new sentencing hearing and again
sentenced Himelright to 121 months’ imprisonment and 40 years’ supervised release. This
appeal followed. Himelright now contends that the district court procedurally and
substantively erred by (1) imposing a term of incarceration without fully considering the
mitigating 18 U.S.C. § 3553(a) sentencing factors; (2) imposing a term of supervised
release based on a standardized formula rather than an individualized assessment; and
(3) ordering as a special condition of supervision that Himelright not work in any type of
employment without the approval of the probation officer.
“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 Guidelines range.’” United States v. Lymas, 781 F.3d 106, 111
(4th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007) (alteration omitted)).
The review requires consideration of both the procedural and substantive reasonableness
of the sentence. Id. In determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory Sentencing Guidelines range,

-- 2 of 6 --

3
considered the 18 U.S.C. § 3553(a) sentencing factors, and sufficiently explained the
selected sentence. Id. at 111-12.
After determining that the sentence is procedurally reasonable, we consider the
substantive reasonableness of the sentence. Gall, 552 U.S. at 51. “Substantive
reasonableness examines the totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it chose satisfied the standards
set forth in § 3553(a).” United States v. Hargrove, 701 F.3d 156, 160-61 (4th Cir. 2012)
(internal quotation marks omitted). We presume that a sentence within or below a properly
calculated Guidelines range is substantively reasonable. United States v. Vinson, 852 F.3d
333, 357 (4th Cir. 2017). “Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” United
States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Himelright claims that the district court erred in imposing the within-Guidelines-
range term of 121 months’ imprisonment without properly considering Himelright’s
personal history and characteristics, including his education, employment record, and lack
of criminal history. We disagree. “Although the court must base the sentence on an
individualized assessment, it need not robotically tick through the § 3553(a) factors.”
United States v. Helton, 782 F.3d 148, 153 (4th Cir. 2015) (internal quotation marks
omitted). “Instead, the adequacy of the sentencing court’s explanation depends on the
complexity of each case and the appropriateness of brevity or length, conciseness or detail,
when to write, what to say, depends upon the circumstances.” United States v. Arbaugh,
951 F.3d 167, 174 (4th Cir. 2020) (cleaned up). “And in a routine case, where the district

-- 3 of 6 --

4
court imposes a within-Guidelines sentence, the explanation need not be elaborate or
lengthy.” Id. at 174-75 (internal quotation marks omitted).
Here, the district court provided a thorough, individualized explanation of its
reasons for imposing the within-Guidelines-range term of imprisonment, including
expressly acknowledging the mitigating factors Himelright raised in support of a reduced
sentence. Himelright has therefore not identified any procedural errors in the court’s
imposition of the term of imprisonment, nor has he rebutted the presumption of substantive
reasonableness.
Himelright also claims that the district court procedurally erred in imposing a term
of supervised release based on a standardized formula rather than an individualized
assessment. Again, we disagree. “District judges exercise significant discretion in setting
the length and conditions of supervised release within parameters set by both federal
statutes and the Sentencing Guidelines.” United States v. Hamilton, 986 F.3d 413, 417
(4th Cir. 2021). For crimes under § 2252A, terms of supervised release can range from a
minimum of five years to a maximum of life. 18 U.S.C. § 3583(k). The Sentencing
Guidelines recommend imposing the statutory maximum in such cases. U.S. Sentencing
Guidelines Manual § 5D1.2(b), p.s. (2018).
In the instant case, the district court provided a lengthy explanation of its decision
to impose a 40-year term of supervised release, including outlining some of the particular
facts of Himelright’s case. Himelright’s age and offense of conviction appear to have been
given more weight than other factors in this calculation, but that is not necessarily
indicative of unreasonableness. See United States v. Fowler, 948 F.3d 663, 672 (4th Cir.

-- 4 of 6 --

5
2020) (“[I]t is not required that the district court somehow give all the different factors
precisely equal weight. Sometimes one factor will outweigh the others.”). On the contrary,
a review of the record reveals that the district court provided an adequate individualized
assessment and did not abuse its significant discretion in imposing the 40-year term of
supervised release.
Finally, both parties contend that, in light of Hamilton, 986 F.3d at 419-21, the
special condition of supervised release requiring that Himelright “not work in any type of
employment without the prior approval of the probation officer” was overbroad and lacked
a sufficient nexus to Himelright’s conviction.∗ In Hamilton, the same employment
condition was imposed under similar circumstances, and this court held that it was
overbroad. Id. at 419. This court explained that “[s]ome restriction on employment may
indeed be in order, but the all-encompassing restriction here lacks an appropriate nexus to
the nature and circumstances of the offense.” Id. at 420 (internal quotation marks omitted).
To cure the error, “[t]here must be some tailoring of the condition to the circumstances of
the case” to show “a reasonably direct relationship between defendant’s conduct relevant
to the offense of conviction and the occupation being restricted.” Id. (internal quotation
marks omitted). For example, the restriction might be limited “to jobs that involve regular
or private contact with minors, or to occupations that would provide [the defendant] ready
opportunity to ply his proclivities for child sexual abuse.” Id.
∗ We recognize that the district court did not have the benefit of Hamilton when it
imposed Himelright’s sentence.

-- 5 of 6 --

6
We agree with the parties that the employment condition in this case suffers from
the same defects that were present in Hamilton. We therefore affirm the judgment of the
district court as to the length of the terms of incarceration and supervised release; vacate
the condition of supervised release prohibiting Himelright from working in any
employment without the prior approval of the probation officer; and remand with directions
to the district court “to craft more precisely an employment restriction that bears a nexus
to the defendant’s particular misconduct without jeopardizing the salient goal of
safeguarding children’s safety.” Id. at 421. 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

-- 6 of 6 --