UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4991
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY HYMAN PALMER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
District Judge. (CR-04-13)
Submitted: February 7, 2007 Decided: March 9, 2007
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Hyman Palmer pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). Palmer’s adjusted total offense level of 19 and his
criminal history category of IV yielded a guideline range of 46 to
57 months imprisonment. At sentencing, Palmer’s attorney argued
for a sentence below the advisory guidelines range1 based on:
(1) the age of Palmer’s prior felony convictions (both of which
occurred when he was 18-19 years old); (2) Palmer’s poor health
(diabetes and kidney failure); and (3) his interest in maintaining
a relationship with his three children and the mother of his two
youngest children. The district court sentenced Palmer to 46
months imprisonment--the bottom of the guidelines range--without
any comment on his arguments for a below-guidelines sentence or any
mention of, or reference to, the factors enumerated in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006). Palmer’s only argument on
appeal is that the district court failed to adequately articulate
its reasons for his sentence. We agree.
This court reviews a district court’s sentence for
reasonableness. United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005). “Consistent with the remedial scheme set forth in
[United States v.] Booker, [543 U.S. 220 (2005),] a district court
1
Palmer was sentenced after United States v. Booker, 543 U.S.
220 (2005)
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shall first calculate (after making the appropriate findings of
fact) the range prescribed by the guidelines.” Id. at 546. Next,
the district court must consider this range in conjunction with
other relevant factors under the guidelines and § 3553(a) and
impose a sentence. Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47 (citations omitted). “[A] sentence within the proper
advisory Guidelines range is presumptively reasonable.” United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations
omitted). “[A] defendant can only rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir.) (internal quotation marks and citation
omitted), petition for cert. filed, ___U.S.L.W.___ (U.S. July 21,
2006) (No. 06-5439).
A post-Booker sentence may be unreasonable for procedural
or substantive reasons. “A sentence may be procedurally
unreasonable, for example, if the district court provides an
inadequate statement of reasons or fails to make a necessary
factual finding.” United States v. Moreland, 437 F.3d 424, 434
(4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054
(2006). While a district court must consider the various factors
listed in § 3553(a) and explain its sentence, it need not
“robotically tick through § 3553(a)’s every subsection” or
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“explicitly discuss every § 3553(a) factor on the record.”
Johnson, 445 F.3d at 345. “This is particularly the case when the
district court imposes a sentence within the applicable Guidelines
range.” Id. (citation omitted).
However, “a district court’s explanation should provide
some indication (1) that the court considered the § 3553(a) factors
with respect to the particular defendant; and (2) that it has also
considered the potentially meritorious arguments raised by both
parties about sentencing.” Montes-Pineda, 445 F.3d at 380
(citations omitted). “[I]n determining whether there has been an
adequate explanation, [the court does] not evaluate a court’s
sentencing statements in a vacuum.” Id. at 381. Rather, “[t]he
context surrounding a district court’s explanation may imbue it
with enough content for [the court] to evaluate both whether the
court considered the § 3553(a) factors and whether it did so
properly.” Id.
On the record before us, we are unable to discern whether
the district court considered the § 3553(a) factors or whether it
did so properly. Accordingly, we vacate Palmer’s sentence and
remand for resentencing in order to allow the district court to
articulate its reasons in imposing sentence.2 We dispense with
2
We note that the district court sentenced Palmer prior to our
decisions in Moreland, Johnson, and Montes-Pineda, and thus did not
have the benefit of the guidance provided by those cases. We
further note that the district court is free on remand to impose
the same sentence or a different one; nothing in this opinion
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oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
should be read to suggest that we have formed any view regarding
the appropriate outcome of Palmer’s resentencing.
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