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United States v. Provance

United States Court of Appeals, Fourth Circuit

December 3, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellant,
v.
JON W. PROVANCE, Defendant-Appellee.

          Argued: October 31, 2019

          Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-cr-00115-BO-1)

         ARGUED:

          Erin Christina Blondel, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.

          Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.

          G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

          Before MOTZ, DIAZ, and THACKER, Circuit Judges.

          THACKER, CIRCUIT JUDGE

         Jon William Provance ("Appellee") pled guilty to one count of assault resulting in bodily injury to a victim under 16 years of age, admitting that he repeatedly injured his newborn son. Appellee's advisory sentencing range was calculated at 33 to 41 months of imprisonment, but the district court varied downward and sentenced him to only five years of probation and 200 hours of community service. The Government appeals, arguing Appellee's sentence is substantively unreasonable because (1) nothing in the record supported a downward variance; and (2) the district court relied on an impermissible sentencing factor, namely Mrs. Provance's purported relative culpability.

         As we must, we review the sentence for procedural reasonableness before addressing whether it is substantively reasonable. Upon this review, we conclude the district court failed to provide an explanation in support of its sentence sufficient to permit meaningful appellate review. Accordingly, we vacate the sentence as procedurally unreasonable and remand for further proceedings.

         I.

         In May 2015, Appellee and his wife, Jasmine, gave birth to their first child. Mrs. Provance was an active duty small arms/artillery mechanic in the United States Army, stationed at Fort Bragg, North Carolina. After the birth of their son, Mrs. Provance took six weeks of maternity leave, after which she returned to work full time. Upon Mrs. Provance's return to duty, Appellee became the primary caregiver to the child.

         Between May and August 2015, Appellee repeatedly assaulted his newborn son, causing life threatening injuries. When the child was three months old, Appellee and Mrs. Provance took him to the Womack Army Medical Center after noticing facial bruising and that the child's right leg was swollen. Doctors observed numerous bruises on the child and a skeletal survey revealed five fractures to his ulna, humerus, ribs, and tibia. The fractures were in different stages of healing. The doctors concluded the child was a victim of child abuse and called local authorities.

         Law enforcement and child protective services investigated. During the investigation, Mrs. Provance admitted she had noticed Appellee being rough with their son but claimed she could not recall any incidents that would cause the injuries. Ultimately, on May 8, 2018, Appellee admitted to causing the injuries, ...


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