UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4935
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY LEE NEWKIRK,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-6951)
Submitted: April 28, 2008 Decided: May 8, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
David W. Venable, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his guilty plea to one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924 (West 2000 & Supp. 2007), Johnny Lee Newkirk was
sentenced to fifty-one months in prison. On appeal, Newkirk argued
that his sentence was unreasonable because he claimed it was
greater than necessary to comply with the purposes of 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007). We concluded that Newkirk was
not entitled to relief on this claim. In addition, Newkirk
asserted that he was entitled to be resentenced because the
district court failed to state in open court the reasons for the
sentence as required by 18 U.S.C.A. § 3553(c) (West 2000 & Supp.
2007). However, Newkirk failed to raise this issue in the district
court and we found that the court’s omission did not affect
Newkirk’s substantial rights. Accordingly, we affirmed Newkirk’s
sentence. United States v. Newkirk, 240 F. App’x 591 (4th Cir.
2007) (No. 06-4935). The United States Supreme Court subsequently
granted Newkirk’s petition for writ of certiorari, vacated our
earlier opinion, and remanded the case to our court for further
consideration in light of Gall v. United States, 128 S. Ct. 586
(2007). Newkirk v. United States, 128 S. Ct. 1071 (2008).
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall, 128 S. Ct. at 597; see also
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This
review entails a two-step process. First, the appellate court must
ensure that the district court committed no procedural error, such
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as “failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence--including an explanation for any deviation from the
Guidelines range.” Gall, 128 S. Ct. at 597. If there are no
procedural errors, the appellate court then considers the
substantive reasonableness of the sentence. Id.
It is undisputed that the sentencing court did not state
the reasons for the sentence in open court, as required by 18
U.S.C.A. § 3553(c) (West 2000 & Supp. 2007). Gall provides that a
district court’s failure to adequately explain the sentence it
chooses amounts to a “significant procedural error.” 128 S. Ct. at
597. Because the district court did not have the benefit of Gall,
we conclude that the proper course to follow is to vacate the
sentence and remand the case to give the district court the
opportunity to resentence in light of Gall. Accordingly, we vacate
Newkirk’s sentence and remand for resentencing. We dispense with
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
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