UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4567
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN EDWARD LUDWIG,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:08-cr-00435-GRA-1)
Submitted: May 3, 2010 Decided: June 15, 2010
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. David Calhoun Stephens, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Edward Ludwig pled guilty to possession of child
pornography, in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West
Supp. 2009), and was sentenced to seventy months’ imprisonment.
Ludwig appeals, and Ludwig’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning the
adequacy of the Fed. R. Crim. P. 11 hearing and the
reasonableness of Ludwig’s sentence, but concluding that there
are no meritorious grounds for appeal. For the reasons that
follow, we affirm Ludwig’s conviction, but vacate his sentence
and remand for resentencing.
Because Ludwig did not move in the district court to
withdraw his guilty plea, his challenge to the adequacy of the
Rule 11 hearing is reviewed for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the
record leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
Ludwig’s guilty plea and that any omissions did not affect
Ludwig’s substantial rights. Critically, the transcript of the
plea hearing reveals that the district court ensured the plea
was supported by an independent factual basis and that Ludwig
entered the plea knowingly and voluntarily with an understanding
of the consequences. United States v. DeFusco, 949 F.2d 114,
116, 119-20 (4th Cir. 1991).
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Turning to Ludwig’s sentence, we review it for
reasonableness, applying an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 41 (2007). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. This court must
assess whether the district court properly calculated the
guidelines range, considered the § 3553(a) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. at 49-50; see United States v. Lynn,
592 F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized
explanation must accompany every sentence.”); United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). An extensive
explanation is not required as long as the appellate court is
satisfied “‘that [the district court] has considered the
parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority.’” United States v. Engle,
592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)). Finally, this court reviews
the substantive reasonableness of the sentence, “examin[ing] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
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In this case, Ludwig moved for a downward departure
under U.S. Sentencing Guidelines Manual § 5K2.20 (2008) and
asked the court to consider a sentence below the guidelines
range, citing his remorse, age, lack of criminal history,
cooperation with authorities, and the consequences he had
suffered as a result of his actions. In imposing a seventy-
month sentence, the district court stated merely that it
believed Ludwig and had “considered the advisory sentencing
guidelines and . . . the relevant statutory sentencing factors.”
There is no indication in the record that the court considered
Ludwig’s request for a below-guidelines sentence and the
Government failed to show that the absence of an individualized
explanation of the sentence was harmless. Lynn, 592 F.3d at
585. Because it is not clear whether the district court’s
explicit consideration of Ludwig’s arguments would have affected
his sentence, and the court did not provide an explanation for
its sentence sufficient to permit effective appellate review, we
must vacate Ludwig’s sentence and remand for resentencing.
In accordance with Anders, we have reviewed the record
in this case and find no other meritorious issues for review.
This court requires that counsel inform Ludwig in writing of his
right to petition the Supreme Court of the United States for
further review. If Ludwig requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
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then counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Ludwig. 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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