United States v. Gaskill

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4476

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

JERRY GASKILL,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (2:06-cr-00003-BO)

Argued: December 4, 2008 Decided: March 20, 2009

Before KING and DUNCAN, Circuit Judges, and Rebecca Beach SMITH,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Banumathi Rangarajan, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant. J. Matthew
Martin, MARTIN LAW FIRM, P.A., Asheville, North Carolina, for
Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellant. Thomas C. Manning, MANNING & CROUCH, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Appellee Jerry Gaskill was convicted and sentenced in the

Eastern District of North Carolina for making materially false

statements in connection with a matter within the jurisdiction

of the Army Corps of Engineers, in violation of 18 U.S.C.

§ 1001. At his sentencing hearing, the district court, over the

Government’s objection, granted Gaskill a downward variance from

the advisory Sentencing Guidelines range of fifteen to twenty-

one months, and imposed a sentence of three years’ probation

with six months’ home confinement. The Government has appealed

Gaskill’s sentence, asserting that the court erred in granting

the downward variance. As explained below, we agree with the

Government, and thus vacate and remand.

I.

A.

On June 15, 2006, at the conclusion of a four-day trial, a

jury in Raleigh convicted Gaskill of a single § 1001 offense. 1

That charge, contained in Count Four of a four-count indictment,

specified that Gaskill had violated § 1001 by making (and aiding

1
Pursuant to § 1001(a)(2) of Title 18, it is unlawful for
any person to knowingly or willfully “make[] any materially
false, fictitious, or fraudulent statement or representation” in
connection with a matter “within the jurisdiction . . . of the
Government of the United States.”

2
and abetting others in making) false, fictitious, and fraudulent

statements to the Army Corps of Engineers (the “Corps”), by

submitting and causing to be submitted

written statements which claimed that the creation of
[a] 730 foot channel in the Currituck Sound, near
Corolla, North Carolina, resulted by accident, when,
in fact, he knew that the channel [had been]
intentionally dredged, and dredged spoil intentionally
discharged, through prop washing.

J.A. 20. 2 When Gaskill committed this criminal offense, he was

serving as the Director of the Ferry Division of the North

Carolina Department of Transportation (the “NCDOT”). The trial

evidence, viewed in the light most favorable to the prosecution,

was essentially as spelled out below.

1.

In 2003, the NCDOT was directed by the North Carolina

legislature to establish a ferry service from Currituck, an

unincorporated community in Currituck County on the mainland of

North Carolina, eastwardly across the Currituck Sound to

Corolla, a small community in the same county on North

Carolina’s Outer Banks. As Director of the NCDOT’s Ferry

Division, Gaskill was charged with establishing the ferry

service by May 2004. Together with officials of Currituck

2
The indictment is found at J.A. 12-20. Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed
by the parties in this appeal.

3
County — which owned the land essential to establishing the

ferry service — Gaskill selected an area near the Whalehead Club

in Corolla for the proposed ferry terminal. The part of the

Currituck Sound lying adjacent to the Whalehead Club is known as

the Whalehead Club Basin (the “Basin”). In order to establish a

ferry service to the Corolla terminal, the Basin had to be

dredged. Under applicable federal and state law, however, such

dredging activity could be legally undertaken only after

issuance of permits by the Corps and the North Carolina Division

of Coastal Management (commonly referred to as “CAMA”). 3

Gaskill was familiar with the permitting processes of the

Corps and CAMA, and wrote memoranda as early as 2002 to state

and county officials specifying that the proper permits were

essential to establishing the Corolla ferry terminal. As the

land owner, Currituck County was responsible for obtaining such

permits for the dredging of the Basin, but the county officials

doubted whether the permits would be issued by the state and

federal authorities because similar permits had been denied in

the past.

3
The North Carolina Division of Coastal Management is a
state agency commonly referred to as “CAMA,” a reference to the
state’s Coastal Area Management Act, which established the
agency.

4
 In February 2004, Bill Moore, who worked directly for

Gaskill as Superintendent of Dredge and Field Maintenance for

the Ferry Division, responded to Gaskill’s question “How are we

going to do this job?” by advising Gaskill that his people would

“push a barge in there, build a dock, and push it back out.”

J.A. 137. In other words, Moore intended to move an NCDOT

vessel into the shallow waters of the Basin in a forward manner

in order to excavate the bottom of the waterway to create a

channel. According to Moore, Gaskill “seemed okay” with this

suggestion. Id. at 138. Gaskill thereafter told another Ferry

Division employee, however, that “I didn’t order those guys to

do that dredging, but when Bill Moore made that statement, I

knew [Moore] probably or could do something like that, and I

didn’t stop him, so that makes me partly responsible.” Id. at

251.

As of May 2004, no permit applications for dredging in the

Basin had been submitted by the County to either the Corps or

CAMA. Accordingly, no permits had been issued by either agency.

On May 6 and 7, 2004, Moore nevertheless directed Ferry Division

employees to utilize the propellers of two NCDOT vessels to

excavate a channel in the Basin for use by the ferry service.

The Division employees then used the NCDOT vessels to “prop

wash” a channel in the Basin that was about four to five feet in

5
depth, approximately 730 feet long by 30 feet wide, and included

a turning basin approximately 110 feet long by 50 feet wide. 4

Moore drove to Gaskill’s office in Morehead City on May 7,

2004, after the dredging had been completed, and informed

Gaskill that he had directed Ferry Division employees to “kick

that channel out.” J.A. 156. Neither Gaskill nor any other

NCDOT personnel, however, informed the Corps or CAMA of those

events. Nevertheless, the prop washing activity was almost

immediately reported to the federal and state authorities by an

anonymous third party. As a result, the Corps and CAMA

initiated a joint federal-state investigation of the apparently

illegal dredging activity. In responding to this investigation,

Gaskill made the false statements that were used to secure his

conviction for the § 1001 offense. These statements are

explained further below.

First of all, the Corps and CAMA made inquiries to the

Ferry Division concerning the dredging activities in the Basin.

In formulating the Division’s response to those inquiries,

Gaskill, as the Division’s Director, was instructed to conduct

4
“Prop washing” is the term used in Count Four of the
indictment to describe the dredging activity undertaken in the
Basin on May 6 and 7, 2004. Generally, such dredging, also
called “kicking” or “pushing,” means “the use of the propellers
of a vessel to create a backwash which, in turn, dredges and
displaces material.” J.A. 14.

6
an internal review of the dredging activity. Gaskill asked

Moore and other Division personnel to prepare written statements

detailing the events that took place in the Basin on May 6 and

7, 2004. According to Moore, he was directed by Gaskill to “get

your story straight.” J.A. 222. On June 23, 2004, Moore

provided a letter to Gaskill, in which Moore falsely said that a

state vessel had accidently run aground in the Basin,

unintentionally disturbing the sediment on its bottom.

On June 25, 2004, after receiving Moore’s letter, Gaskill

submitted his proposed response to the NCDOT’s Deputy Secretary

(the “Response”). On July 2, 2004, that Response was forwarded,

together with Moore’s letter and other materials, to the Corps.

The Response falsely characterized the disturbance in the Basin

as unintentional and as having a limited environmental impact.

See J.A. 628 (representing to the Corps that “neither Mr. Moore

or the Ferry Division had any intention of deepening the

channel, and any disturbance was unintentional”). The Corps,

upon receiving NCDOT’s submission, which included the Response,

continued to investigate the prop washing incident, seeking to

identify and possibly prosecute those responsible.

On June 28, 2004, CAMA investigators issued a Notice of

Violation to the NCDOT, alleging that “[i]t appears NCDOT is

responsible for the unauthorized excavation of a channel” within

the Basin. J.A. 402. That same day, in a telephone interview

7
with a CAMA investigator, Gaskill again falsely asserted that

the NCDOT had not intentionally caused an environmental

disturbance within the Basin. On July 6, 2004, Gaskill

responded in writing to CAMA’s Notice of Violation, sending it a

letter — substantially identical to the Response submitted to

the Corps — again falsely maintaining that the prop washing

activity in the Basin was unintentional.

Eventually, by notice to the Corps of August 23, 2004, the

NCDOT reversed its position concerning the prop washing

incident, and accepted full responsibility for the illegal

dredging activities in the Basin on May 6 and 7, 2004. J.A. 366

(specifying that “[the NCDOT] has investigated the activities of

the Ferry Division and has determined that they were responsible

for the unauthorized disturbance”). Because the Corps does not

perform restorative environmental work — relying instead on the

responsible party — the four-month delay in identifying the

responsible party resulted in a substantial amount of additional

environmental harm in the Currituck Sound that otherwise could

have been mitigated or avoided.

2.

Gaskill testified in his own defense at trial, asserting

that when the NCDOT submitted his Response to the Corps on July

2, 2004, he was unaware of the actual facts relating to the

Ferry Division’s prop washing activities in the Basin. He also

8
said that he was unaware of those facts when the separate

exculpatory submission was made to CAMA on July 6, 2004. In

fact, Gaskill told the jury that he did not learn of the

intentional nature of those activities until mid-July 2004,

after his denials had been submitted to the Corps and CAMA.

Gaskill denied providing any false information concerning the

incident to the Corps or CAMA, and asserted that he had

contacted them immediately upon learning of the prop washing

activity.

On cross-examination, however, the prosecution confronted

Gaskill with evidence contradicting his direct testimony,

including his admission to a federal investigator on August 26,

2004, that Moore “came clean” with him on June 25, 2004,

concerning the intentional prop washing in the Basin. In view

of these multiple contradictions, and on the basis of the other

evidence, 5 the jury rejected Gaskill’s exculpatory version of the

5
At trial, the Government presented extensive evidence
showing that Gaskill was aware, prior to responding to the Corps
and CAMA, of the illegal nature of the dredging activities in
the Basin. Moore testified that he told Gaskill of the illegal
nature of the dredging on May 7, 2004. Gaskill’s former
secretary testified that, at a May 11, 2004 meeting, Gaskill
stated that the Ferry Division had “made water” in Corolla.
Additionally, Charles Utz, another Division employee, testified
that sometime before the end of June 2004, Gaskill showed him
the CAMA Notice of Violation and an aerial photograph of the
prop washed area. This evidence convinced Utz that the dredging
could not have been an accident, but Gaskill nevertheless had
him prepare the July 6, 2004 letter to CAMA, asserting Gaskill’s
(Continued)
9
prop washing incident. Gaskill was thus convicted of the § 1001

offense in Count Four of the indictment. 6

B.

After Gaskill’s trial and conviction, a presentence report

(the “PSR”) was prepared, and it recommended a Sentencing

Guidelines base offense level of 14. See USSG § 2J1.2 (2006).

The PSR also recommended a two-level enhancement for obstruction

of justice, predicated on Gaskill’s perjured trial testimony.

See id. § 3C1.1. As stated in the PSR, the final offense level

of 16, combined with a criminal history category of I, yielded

an advisory sentencing range of twenty-one to twenty-seven

months of imprisonment.

In response to the PSR, Gaskill objected to an obstruction

of justice enhancement. He also filed a “Motion for Variance

Sentence,” asserting that a sentence below the advisory

Guidelines range was appropriate. In the motion, Gaskill

alleged that he had neither sanctioned, participated in, nor

authorized the dredging; that he had been “betrayed” by his

exculpatory version of the facts. In all, eighteen witnesses
testified for the Government. Gaskill himself, plus six
character witnesses, testified for the defense.
6
At trial, the court granted judgment of acquittal on two
related counts against Gaskill, and the jury acquitted him of
the remaining charge.

10
subordinate, Moore; and that his criminal conduct — lying about

the dredging — was out of character and a singular lapse of

judgment, i.e., aberrant behavior. In its written sentencing

memorandum, the Government objected to Gaskill’s variance

request, asserted that an adjustment for obstruction of justice

was appropriate, and requested the imposition of a sentence

within the advisory Guidelines range.

On March 20, 2007, the district court conducted the

sentencing hearing. 7 The court first sustained Gaskill’s

objection to the PSR’s recommendation of a two-level enhancement

for obstruction of justice, concluding that the prosecution had

“not satisfied by a preponderance of the evidence that there was

an obstruction of justice.” J.A. 753. 8 The court then

determined that Gaskill’s proper advisory sentencing range,

predicated on a base offense level of 14 and a criminal history

category of I, was fifteen to twenty-one months.

The district court then turned to Gaskill’s request for a

variance sentence, granting a downward variance and sentencing

him to three years’ probation with six months’ home confinement.

7
The transcript of the Sentencing Hearing is found at J.A.
734-68.
8
On appeal, the Government does not contend that the
sentencing court erred in rejecting the obstruction of justice
enhancement.

11
The court also ordered Gaskill to perform 150 hours of community

service and pay a $5000 fine. The Statement of Reasons filed by

the court with respect to the sentence did not explain the basis

for the variance sentence, nor did it select or emphasize any of

the 18 U.S.C. § 3553(a) factors as justifying such a variance.

Instead, the Statement of Reasons provided that “[t]he

defendant’s motion for variance is granted by the court.” J.A.

798.

The Government has timely noted this appeal, challenging

the sentence and seeking to have it vacated. We possess

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 9

II.

We review a sentence imposed by a district court for

reasonableness, applying an abuse of discretion standard. See

Gall v. United States, 128 S. Ct. 586, 597-98 (2007); United

States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). 10

9
Upon motion of the Government, the execution of Gaskill’s
sentence has been stayed pending resolution of this appeal.
10
Gaskill contends that his sentence can only be vacated if
it constitutes plain error, because the Government waived any
objection by failing to object following the imposition of the
variance sentence. This contention is without merit. As we
have previously recognized, the Government preserves its
objection to a variance sentence by “arguing for a sentence
within the Guidelines range throughout the sentencing hearing.”
United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006); see
(Continued)
12
Generally, in order to determine whether a sentencing court has

abused its discretion, we apply a two-step analysis. Pauley,

511 F.3d at 473. First, we examine the sentence for

“significant procedural errors,” and, second, we evaluate the

substance of the sentence. Id. In assessing procedural

reasonableness, we examine whether the sentencing court properly

calculated the Guidelines range, whether it treated the

Guidelines as mandatory, whether it considered the factors set

forth in 18 U.S.C. § 3553(a), and whether it selected a sentence

based on “clearly erroneous facts” or failed to sufficiently

explain the sentence. See Gall, 128 S. Ct. at 597; Pauley, 511

F.3d at 473.

If there are no procedural errors, we proceed to consider

the substantive reasonableness of a sentence, “taking into

account the ‘totality of the circumstances including the extent

of any variance from the Guidelines range.’” Pauley, 511 F.3d

at 473 (quoting Gall, 128 S. Ct. at 597). In evaluating a

sentence that falls within a properly calculated Guidelines

range, we may — but are not obliged to — apply a presumption of

reasonableness. Gall, 128 S. Ct. at 597. Where, as here, the

also United States v. Clark, 434 F.3d 684, 686 n.1 (4th Cir.
2006). The Government, in its sentencing memorandum and at the
sentencing hearing, advocated for a sentence within the advisory
Guidelines range.

13
sentence falls outside the advisory Guidelines range, we “may

consider the extent of the deviation, but must give due

deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” Id.

III.

The sentence imposed on Gaskill is flawed in that the

sentencing court procedurally erred by failing to fully consider

the 18 U.S.C. § 3553(a) factors and adequately explain the

sentence imposed, as required by § 3553(c). We explain further

below.

A.

The Supreme Court’s decision in Gall v. United States

identified two potential procedural problems with respect to a

sentencing court’s assessment of the relevant sentencing

factors. See 128 S. Ct. 468, 596-97 (2007). First, “after

giving both parties an opportunity to argue for whatever

sentence they deem appropriate,” a sentencing court should

“consider all of the § 3553 factors to determine whether they

support the sentence requested by a party.” Id. at 596.

Significantly, § 3553(a) mandates that a sentencing court

consider the statute’s enumerated factors. See § 3553(a) (“The

court, in determining the particular sentence to be imposed,

shall consider [the § 3553(a) factors].”); see also United

14
States v. Battle, 499 F.3d 315, 323 (4th Cir. 2007) (“A district

court must . . . consider the § 3553(a) factors in every case,

regardless of whether the sentence imposed is within the

Guidelines range.”). 11 Nevertheless, a sentencing court need not

accord equal weight to each of the § 3553(a) factors, and it is

“quite reasonable for the sentencing court to have attached

great weight to a single factor.” United States v. Pauley, 511

F.3d 468, 476 (4th Cir. 2007) (internal quotation marks

omitted).

Second, after determining the appropriate sentence, a

sentencing court “must adequately explain the chosen sentence to

11
Pursuant to § 3553(a) of Title 18, a sentencing court, in
determining the sentence to impose, shall consider:

(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;

(2) the need for the sentence to (A) reflect the
seriousness of the offense, promote respect for the
law, and provide just punishment for the offense, (B)
afford adequate deterrence to criminal conduct, (C)
protect the public from further crimes, and (D)
provide the defendant with needed medical care or
other correctional treatment;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range
established in the applicable guidelines;

(5) any pertinent policy statements; and

(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct.

15
allow for meaningful appellate review and to promote the

perception of fair sentencing.” Gall, 128 S.Ct. at 597; see

also 18 U.S.C. § 3553(c) (directing sentencing court to “state

in open court the reasons for its imposition of the particular

sentence”). As we have explained, however, a sentencing court

need not “robotically tick through § 3553(a)’s every

subsection,” United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006), and we have ourselves matched a sentencing court’s

reasons — when not couched in the precise language of § 3553(a)

— to an appropriate § 3553(a) factor, United States v. Moulden,

478 F.3d 652, 658 (4th Cir. 2007). Significantly, a sentencing

court’s “explanation of a variance sentence must be tied to the

factors set forth in § 3553(a).” United States v. Hernandez-

Villanueva, 473 F.3d 118, 122-23 (4th Cir. 2007). Moreover,

notwithstanding our deferential standard for review, it is well

established that a sentence well outside the advisory Guidelines

range “should be supported by a more significant justification

than a minor one.” Gall, 128 S. Ct. at 597.

B.

At Gaskill’s sentencing, the district court did not

explicitly state that it had considered any of the § 3553(a)

factors. Significantly, the court did not address the

Government’s § 3553(a) contentions on the nature of the offense,

the characteristics of the defendant, or the importance of

16
affording adequate deterrence to criminal conduct.

Additionally, the court failed to assess Gaskill’s contentions —

presented in his variance motion — that he had neither

sanctioned, participated in, nor authorized the dredging; that

he had been “betrayed” by Moore; and that his criminal conduct

constituted aberrant behavior.

The sentencing court observed that, although both Gaskill

and the Government had made arguments concerning the appropriate

sentence, other factors would also be considered. See J.A. 764

(“I’m going to give both defendants a sentence in a minute, but

as the referee, I think it would be unjust for the sentence to

be grounded only in what the two sides say, because I think that

grossly distorts what’s going on in this case.”). In order to

determine whether the court considered the § 3553(a) factors, we

assess the other factors discussed by the court, placing them

into two broad categories: the “dredging comments” and the

“public service comment.”

1.

In its dredging comments, the court stated that it was

“committed to restoring and preserving . . . the environment” in

coastal North Carolina, but that “the whole mosaic of the

environment” should be considered. J.A. 764. The court noted

that, in assessing the impact to this “delicate and precious

resource,” consideration should be given to the roles of “the

17
national government, the United States, and the state of North

Carolina.” Id. at 763. The court highlighted the fact that

Gaskill did not simply “on a Saturday afternoon, decide[] to go

out, [and] on a lark do something that impacted the

environment.” Id. Rather, “[t]his was the state of North

Carolina, through all its agencies and resources, doing this as

official policy.” Id. Further, the court observed that the

ferry services provided by North Carolina are “critical,

essential, life-saving and life-preserving and life-generating

lines between coastal areas, islands, and the people who live

there.” Id. 12

12
As an example of the existing situation in coastal North
Carolina, the district court discussed at some length the
relationship of the state and federal governments and their
response after Hurricane Isabelle:

In Hurricane Isabelle, an inlet was punched through on
Hatteras Island. Did they call it an inlet? No. Why
didn’t they call it an inlet? They didn’t call it an
inlet because you can’t close an inlet, but you can
close a breach. So the government, state and federal,
went hog wild, hard as they could, long as they could,
dredging and pumping. Was that an environmentally
positive or sound event? I don’t know. . . . Was
there a political and policy commitment to keep a land
road to Hatteras? You bet there was. Did that mean
that that inlet was going to be closed? If in any way
it was physically possible, that inlet was going to be
closed, and there was no limit to what was going to
happen until that happened.

J.A. at 764-65.

18
 Thus, although the sentencing court recognized that

environmental damage to the Basin was “unfortunate and

reprehensible,” it tempered that observation by stating that

such damage “needs to be seen in the context of everything

that’s going on in coastal North Carolina.” J.A. 765. The

court then stated that “[t]he state necessarily and properly

remediated the damage. Was there a long-term permanent effect?

Yes, I think so, based on what I’ve read. Is that unfortunate?

Yes. Is there anything more that can be done? Probably nature

needs to take its course.” Id. at 765-66.

The dredging comments thus only address the nature and

circumstances of the prop washing incident in the Basin. They

do not reach or address the nature and circumstances of

Gaskill’s § 1001 false statements offense, and cannot be

characterized as addressing any specific § 3553(a) factor. As a

result, the dredging comments are not linked to the history and

characteristics of Gaskill personally, to the nature and

circumstances of his § 1001 offense, or to any other factor

specified in § 3553(a).

2.

Turning to the public service comment, the sentencing court

recognized that Gaskill had served in a supervisory capacity for

the state and had a long history of public service. The court

observed that Gaskill had “provided extensive public service in

19
his job as director of the ferry service” and that he had served

in a management capacity as a state employee with significant

responsibilities. J.A. 766. This comment appears to bear on

the factor identified in § 3553(a)(1), “the nature and

circumstances of the offense and the history and characteristics

of the defendant.” See Hernandez-Villanueva, 473 F.3d at 122

(explaining that sentencing court “‘may consider, without

limitation, any information concerning the background, character

and conduct of the defendant, unless otherwise prohibited by

law’” (quoting USSG § 1B1.4)). Accordingly, the public service

comment indicates that the court partially considered one aspect

— the history and characteristics of the defendant — of one

factor under § 3553(a).

C.

In the absence of some indication that the sentencing court

considered all the § 3553(a) factors, we are unable to conclude

that it complied with its § 3553 mandate. See United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (explaining

that “district court’s explanation should provide some

indication . . . that the court considered the § 3553(a)

factors”). First, the court did not explicitly state that it

had considered the § 3553(a) factors or address the parties’

arguments addressing such factors. Second, in these

circumstances, we accept the proposition that the sentencing

20
court primarily considered the factors it placed on the record

at the sentencing hearing — i.e., the dredging comments and the

public service comment — in granting a downward variance. The

court’s implicit consideration of only a part of a single

§ 3553(a) factor, however, is insufficient to support the

implication that it considered each of the § 3553(a) factors. 13

Finally, the Statement of Reasons filed in connection with the

sentencing did not explain the court’s reasoning. In fact, the

court did not identify any § 3553(a) factor in its Statement of

Reasons as being supportive of a variance sentence. Because a

sentencing court should provide a more substantial justification

for a probationary sentence when the Advisory Guidelines call

for an active sentence of imprisonment, such as in this case, we

are unable to conclude that the award of a downward variance was

procedurally sound. 14

13
Gaskill contends that the sentencing court incorporated
the arguments that were made in his motion for a variance when
the court stated that it was “going to allow the defendant’s
motion for a variant sentence on Mr. Gaskill.” See J.A. 766.
The record reveals that, although the court granted Gaskill’s
motion, it did so without referring to Gaskill’s asserted
reasons in any way. We are, in these circumstances, unable to
impute the contentions of the motion to the court’s reasoning.
14
On appeal, the Government has characterized the
sentencing court’s reliance on factors not cognizable under
§ 3553(a) as constituting procedural error. Br. of Appellant
27-30. So long as a sentencing court satisfies the procedural
requirements delineated by the Supreme Court, however, a
challenge to its reliance on improper factors is more
(Continued)
21
 IV.

Pursuant to the foregoing, we vacate and remand for

resentencing.

VACATED AND REMANDED

appropriately considered under a substantive reasonableness
analysis. See United States v. Moreland, 437 F.3d 424, 434 (4th
Cir. 2006) (instructing that “[a] sentence may be substantively
unreasonable if the court relies on an improper factor”); see
also United States v. Green, 436 F.3d 449, 456-57 (4th Cir.
2006) (recognizing that a “district court’s reasons for not
applying the properly calculated Guideline range must be based
on the factors listed in § 3553(a)”). Having concluded that the
court erred procedurally, we need not reach or assess the
substantive reasonableness of the sentence.

22