UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ALEXANDER SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:08-cr-00084-RGD-JEB-1)
Submitted: April 28, 2010 Decided: May 24, 2010
Before KING, SHEDD, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, Alexandria, Virginia;
Walter B. Dalton, Assistant Federal Public Defender, Norfolk,
Virginia, for Appellant. Dana J. Boente, Assistant United
States Attorney, Alexandria, Virginia; Scott W. Putney,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Alexander Scott pled guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced to fifty-one months’
imprisonment and three years of supervised release. Scott
appeals. In light of United States v. Lynn, 592 F.3d 572 (4th
Cir. 2010), we vacate and remand.
Scott contends that the district court committed a
procedural error by failing to explain the factual basis for
requiring him to undergo mental health evaluation and treatment
as a sex offender, as a special condition of supervised release.
After United States v. Booker, 543 U.S. 220 (2005), this court
reviews a sentence for reasonableness, using an abuse of
discretion standard of review. Gall v. United States, 552 U.S.
38, 51 (2007). The first step in this review requires the court
to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “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, 552 U.S. at 51.
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“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, [this court] review[s] for abuse of discretion” and will
reverse if such an abuse of discretion is found unless the court
can conclude “that the error was harmless.” Lynn, 592 F.3d at
576. For instance, “the district court must state in open court
the particular reasons supporting its chosen sentence” and “set
forth enough to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks omitted). If “an aggrieved party sufficiently
alerts the district court of its responsibility to render an
individualized explanation” by drawing arguments from § 3553
“for a sentence different than the one ultimately imposed,” the
party sufficiently “preserves its claim.” Lynn, 592 F.3d at
578.
As in Lynn, we conclude that Scott’s “arguments in the
district court for a different sentence than the one he received
preserved his claim of procedural sentencing error on appeal.”
Lynn, 592 F.3d at 581. These arguments “sufficiently alert[ed]
the district court of its responsibility to render an
individualized explanation addressing those arguments.” Id. at
578. Therefore, we must review any procedural sentencing error
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for abuse of discretion and reverse unless the error was
harmless. Id. at 579.
The district court erred because it failed to explain
why it imposed sex offender treatment as a condition of Scott’s
supervised release. See Lynn, 592 F.3d at 581-82. The error
was not harmless because, inter alia, the district court’s lack
of explanation for imposing this condition resulted in “a record
insufficient to permit even routine review for substantive
reasonableness.” Id. at 582 (omission and internal quotation
marks omitted).
Accordingly, we conclude that the district court
committed procedural error and abused its discretion when
imposing the sentence. * We therefore vacate Scott’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
*
Because we find that Scott’s sentence is procedurally
unreasonable, we do not consider whether his sentence is
substantively unreasonable.
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