Addressing the Central Thesis Suffices: Fourth Circuit Reaffirms Minimal Explanation and Harmless Error for Consecutive Revocation Sentences

Introduction

This commentary analyzes the Fourth Circuit’s unpublished per curiam decision in United States v. Eugene McGilvery, III, No. 24-4085 (4th Cir. Sept. 10, 2025), affirming a 24-month consecutive sentence imposed upon revocation of supervised release. The appeal turned exclusively on the procedural reasonableness of the revocation sentence—specifically, whether the district court adequately explained its choice to impose the statutory-maximum revocation term consecutively to a new federal drug sentence.

The panel (Judges Rushing and Berner, and Senior Judge Traxler) held that the district court’s explanation, focused on deterrence and breach of trust, satisfied the governing standards even though it did not specifically address every mitigation argument. Moreover, the court added a robust harmless-error alternative holding: even if the explanation were deemed inadequate, any error would be harmless because the record showed the court’s awareness of the facts, the arguments, and its reasons for choosing a consecutive maximum term.

This opinion consolidates two significant strands of Fourth Circuit revocation sentencing jurisprudence:

At revocation, a district court’s explanation “need not be as detailed or specific” as at an original sentencing, and it need only address the defendant’s central thesis rather than every subsidiary claim.
Harmless-error review can sustain a revocation sentence where the record makes clear that a more elaborate explanation would not have changed the outcome.

Summary of the Opinion

The district court sentenced McGilvery to 120 months for a new federal methamphetamine offense and, in a separate but same-day hearing, imposed a 24-month term upon revocation of supervised release, to run consecutively. On appeal, McGilvery did not challenge the new drug sentence or the substantive reasonableness of the revocation sentence. He argued only that the district court inadequately explained the revocation sentence—particularly the decision to make it consecutive.

Applying the “plainly unreasonable” standard of review for revocation sentences, the Fourth Circuit affirmed. The panel concluded:

The district court correctly calculated the relevant Chapter 7 policy-statement range (33–41 months) and acknowledged the 24-month statutory cap on imprisonment for this revocation.
The court identified permissible factors—general and specific deterrence and the defendant’s breach of the court’s trust, especially given the seriousness and timing of the new offense—and explained why those factors supported a consecutive, statutory-maximum revocation sentence.
Although the court did not explicitly address every mitigation point favoring concurrency, the record established that it read and considered the defense sentencing memorandum, discussed some points raised only therein, recommended substance abuse and mental health treatment, and even referenced a letter from McGilvery’s daughter—demonstrating familiarity with the case and the central defense thesis.
Even if the explanation were deemed inadequate, any error was harmless because there is no realistic possibility that a fuller explanation would have changed the sentence.

Analysis

Precedents Cited and Their Influence

United States v. Crudup, 461 F.3d 433 (4th Cir. 2006): Established the “plainly unreasonable” standard for reviewing revocation sentences. Under Crudup, the court first assesses reasonableness (procedural and substantive) and, if unreasonable, asks whether the error is “plain.” Here, Crudup anchors the deferential posture and frames the analysis: Did the district court consider the appropriate § 3583(e) and permissible § 3553(a) factors and explain itself adequately for a revocation context?
United States v. Webb, 738 F.3d 638 (4th Cir. 2013): Reiterated that district courts have broad discretion at revocation and underscored the limited set of § 3553(a) considerations permitted by § 3583(e). Although Webb is cited here for the breadth of discretion, it also stands for the principle that retributive considerations in § 3553(a)(2)(A) (e.g., “seriousness of the offense”) are not directly cognizable at revocation, while breach of trust and deterrence are.
United States v. Thompson, 595 F.3d 544 (4th Cir. 2010): Clarified that a sentencing court’s explanation for a revocation sentence “need not be as detailed or specific” as for an original sentence. The panel relied on Thompson to set the bar for procedural reasonableness at revocation lower than at initial sentencing.
United States v. Coston, 964 F.3d 289 (4th Cir. 2020): Emphasized that a revocation sentence will be affirmed if it falls within the statutory range and is not “plainly unreasonable.” Coston supplied the modern formulation of the Crudup standard with a “cleaned up” citation the panel tracked here.
United States v. Powers, 40 F.4th 129 (4th Cir. 2022): Articulated the “no ‘Gotcha!’” approach to appellate review of sentencing explanations: courts look to whether the district judge addressed the defendant’s central thesis and need not tick through every supporting point. The panel leaned heavily on Powers to reject the argument that the district court had to explicitly address each mitigation claim for a concurrent term.
United States v. Boulware, 604 F.3d 832 (4th Cir. 2010): Applied harmless-error principles to alleged explanation deficiencies in sentencing. Here, Boulware undergirds the alternative holding that even if the court’s explanation were insufficient, the error was harmless because a remand would be a “pointless waste of resources” in light of the record and the court’s articulated rationale.

Beyond the cited cases, the court’s reasoning coheres with the Sentencing Commission’s Chapter 7 policy statements for supervised release, which conceptualize revocation as sanctioning the “breach of trust” rather than punishing the new criminal conduct itself. The decision’s focus on deterrence and breach of trust aligns with those policy statements and with § 3583(e)’s specific incorporation of § 3553(a)(2)(B)–(D) but not § 3553(a)(2)(A).

Legal Reasoning

The opinion proceeds in three logical steps.

Standard of Review and Governing Factors.
- The court reiterated the “plainly unreasonable” standard applicable to revocation sentences.
- On procedural reasonableness, the touchstones are whether the district court considered (i) the relevant Chapter 7 policy statements and (ii) the § 3553(a) factors enumerated in § 3583(e)—notably the need for deterrence, protection of the public, and treatment needs, along with the defendant’s history and characteristics.
- The district court must explain its decision, but with less granularity than at an original sentencing. Thompson controls that proposition.
Adequacy of the Explanation in This Case.
- Policy range and statutory cap. The district court correctly recognized an advisory policy-statement range of 33–41 months, constrained by a statutory maximum of 24 months for this revocation. Thus, 24 months was the most the court could impose; it did so.
- Reasons given. The court emphasized the need for both general and specific deterrence and highlighted McGilvery’s significant breach of the court’s trust—as evidenced by repeated drug-use violations and a new, more serious drug trafficking offense shortly after release on a prior revocation. Those are quintessentially permissible considerations at revocation.
- Consecutivity. Although the court did not cite the consecutivity policy statement (U.S.S.G. § 7B1.3(f)) by name, its rationale—deterrence and breach of trust after quick recidivism—adequately supports a consecutive term under § 3584(a), as explained by Powers’ “central thesis” framework. The defense’s main ask was concurrency; the court explained why a separate, additional penalty for the trust breach was warranted.
- Addressing mitigation. The district court stated it had read and considered the defense memorandum and, during the hearing, discussed points raised only in that memorandum. It also recommended substance abuse and mental health treatment and referenced a letter from McGilvery’s daughter—signals that the court considered history, characteristics, and treatment needs. Under Powers, having addressed the defense’s central request (concurrency) with a reasoned rejection, the court was not obliged to catalog and refute each supportive consideration.
Harmless-Error Alternative Holding.
- Even assuming arguendo that the explanation was not sufficiently detailed, the panel held that any error was harmless under Boulware. Given the court’s clear reasons and demonstrated engagement with the record, there is no realistic possibility that a more elaborate explanation would have changed the decision to impose a consecutive 24-month term.

Impact and Forward-Looking Considerations

Although unpublished and therefore non-binding within the Fourth Circuit, the decision has practical significance in revocation practice:

Reinforcement of the “central thesis” sufficiency rule at revocation. Powers’ “no ‘Gotcha!’” review applies with full force in the revocation context. If the record shows the district court considered the advisory policy statements and the applicable § 3553(a) factors under § 3583(e), and it articulates reasons that engage the defendant’s central position (for example, a request for concurrency), the explanation will generally be deemed adequate—even if not every argument is mentioned.
Consecutive statutory-maximum terms are sustainable with focused reasons. Where the record shows quick and serious recidivism and accompanying breach of trust, courts can impose the statutory maximum at revocation and run it consecutively, so long as the explanation is tethered to permissible revocation considerations like deterrence, public protection, and treatment needs, and reflects the breach-of-trust paradigm.
Harmless-error serves as a backstop. The panel’s explicit reliance on harmless-error review counsels that many claims of explanatory deficiency at revocation will fail if the record otherwise makes the district court’s rationale and consideration clear.
Sequencing matters, but not outcome-determinatively. The district court handled the new offense and the revocation “seriatim,” which can help segregate the different factor sets (full § 3553(a) at the new-offense sentencing versus the narrower § 3583(e) lens at revocation). While not required, such structuring can fortify the record.
Practical guidance.
- For district judges: Make a concise record that you read the parties’ memoranda; identify the policy range; invoke deterrence, public protection, treatment needs, and breach of trust as appropriate; and expressly address the central defense ask (often concurrency).
- For defense counsel: To preserve procedural challenges, crystalize a singular “central thesis” and invite an on-the-record response. Where concurrency is sought, tie it to treatment, rehabilitation progress, and lack of added deterrent value.
- For prosecutors: Emphasize breach of trust and the Chapter 7 policy preference for consecutive terms (U.S.S.G. § 7B1.3(f)), and urge the court to make clear it has considered defense submissions.

Complex Concepts Simplified

Supervised release and revocation. After prison, a defendant serves supervised release under conditions. Violations can lead to revocation and a return to custody. Revocation punishes the breach of the court’s trust in following conditions, not the new crime itself (which is punished separately).
Policy statements versus statutory maximum. The Sentencing Commission’s Chapter 7 policy statements suggest an advisory range based on the violation grade and criminal history. But Congress caps the maximum time a court can impose at revocation based on the class of the original offense. Here, the policy range was 33–41 months, but the statute capped imprisonment at 24 months, so 24 months was the ceiling.
Consecutive versus concurrent. When a defendant faces imprisonment for both a new offense and a revocation, the court must decide whether those terms run at the same time (concurrent) or one after the other (consecutive). Chapter 7 recommends consecutive time for revocation to reflect a separate sanction for breaching trust.
“Plainly unreasonable” review. On appeal, revocation sentences get deferential review. The appellate court first checks if the sentence is unreasonable under the revocation framework. Only if it is unreasonable does the court ask whether the error is plain. A sentence within the statutory range, supported by permissible factors and a basic explanation, will ordinarily be affirmed.
“Central thesis” explanation. A district court must address the defendant’s core argument (for example, “please make the revocation concurrent”), but it need not respond to every supporting point. Appellate review looks holistically at the record for engagement with that central thesis.
Harmless error. Even if the district court’s explanation is imperfect, the appellate court will not reverse if it is clear a better explanation would not have changed the sentence. This promotes finality when the rationale and record are otherwise clear.
Breach of trust. This concept frames revocation: the sanction addresses the failure to comply with supervision, independent of the punishment for the new crime. Quick recidivism and more serious new misconduct aggravate the breach.

Case Background in Brief

2015: McGilvery pleaded guilty to a felon-in-possession charge; received 77 months’ imprisonment and three years’ supervised release.
2021: Shortly after release, he violated; the court revoked and imposed 18 months’ imprisonment plus 18 months’ supervised release; released July 8, 2022.
2022: Within a week, he used marijuana; later tested positive again; failed to attend treatment; amassed state traffic charges; was arrested in October for meth trafficking (state charges later dismissed), then federally indicted for the October conduct.
November 2022: Probation petition alleged ten violations (several tied to the October offense).
Federal drug case: He pleaded guilty to possession with intent to distribute methamphetamine (the opinion cites § 841; the Controlled Substances Act is codified at 21 U.S.C. § 841). The mandatory minimum was 120 months; the advisory range was 120–135 months.
Revocation: Advisory policy range 33–41 months, capped by statute at 24 months. He sought either 24 months concurrent or 6 months consecutive.
District court: Imposed 120 months on the drug case, then 24 months consecutive for revocation after accepting admissions to three violations. Recommended treatment and noted family support.
Appeal: Only the procedural adequacy of the revocation explanation. Affirmed.

Conclusion

United States v. McGilvery confirms, in the supervised release revocation setting, that a district court’s explanation need not answer every mitigation point so long as it addresses the defendant’s central thesis and grounds the sentence in permissible factors—here, deterrence and breach of trust. The court’s reliance on Powers’ “no ‘Gotcha!’” approach underscores that appellate review is holistic and practical rather than hyper-technical. The opinion’s alternative harmless-error holding further insulates revocation sentences from reversal when the record makes clear that a fuller explanation would not have changed the outcome.

While unpublished and not binding, the decision provides persuasive guidance: to sustain a consecutive statutory-maximum revocation term, judges should explain briefly but clearly how deterrence, public protection, treatment needs, and the defendant’s breach of trust justify separate, additional punishment for the supervision violation. Defense counsel seeking concurrency should concentrate their advocacy on a single, coherent thesis and invite an express response; otherwise, generalized mitigation may be deemed considered but unpersuasive. In the broader legal landscape, McGilvery modestly strengthens the procedural durability of revocation sentencing in the Fourth Circuit, clarifying that focused reasoning and a clear record will suffice.