United States v. Olislager

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4179

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

RICHARD OLISLAGER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00030-BO-1)

Submitted: May 21, 2010 Decided: June 17, 2010

Before MOTZ, SHEDD, and DAVIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a written plea agreement, Richard

Olislager pled guilty to receiving child pornography in

violation of 18 U.S.C. § 2252(a) (2006). The district court

initially sentenced him to 480 months. However, because the

Government failed to recommend a 180-month sentence, as it

agreed to in the plea agreement, we vacated Olislager’s sentence

and remanded for resentencing. On remand, despite the

Government’s recommendation of a 180-month sentence and

Olislager’s request that the court follow that recommendation,

the district court sentenced Olislager to 235 months, the bottom

of the properly calculated advisory guideline range.

Olislager has noted his appeal. Counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that, in his view, there are no meritorious issues for

appeal, but questioning whether the sentence imposed was

unreasonable because the district court did not, on the record,

address the 18 U.S.C. § 3553(a) (2006) factors and provide an

individualized explanation of the chosen sentence. Olislager

was advised of his right to file a pro se supplemental brief,

but has not done so. We again vacate the sentence and remand

for resentencing.

A sentence is reviewed for reasonableness under an

abuse of discretion standard. Gall v. United States, 552 U.S.

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38, 51 (2007). This review requires consideration of both the

procedural and substantive reasonableness of a sentence. Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

After determining whether the district court properly calculated

the defendant’s advisory guideline range, this court must decide

whether the district court considered the § 3553(a) factors,

analyzed the arguments presented by the parties, and

sufficiently explained the selected sentence. Gall, 552 U.S. at

51; see United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (holding that, while the “individualized assessment need

not be elaborate or lengthy, . . . it must provide a rationale

tailored to the particular case . . . and [be] adequate to

permit meaningful appellate review”). Properly preserved claims

of procedural error are subject to harmless error review. Lynn,

592 F.3d at 576. If the sentence is free of significant

procedural error, the appellate court reviews the substantive

reasonableness of the sentence. Id. at 575; United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

Olislager contends that his sentence is procedurally

unreasonable because the district court did not consider the

§ 3553(a) factors. Olislager properly preserved the issue by

arguing in the district court for a sentence below the advisory

guideline range and asserting that his employment history,

family ties and responsibilities, and his alcoholism warranted a

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lesser sentence. See Lynn, 592 F.3d at 577-78 (As long as a

defendant “draw[s] arguments from § 3553 for a sentence

different than the one ultimately imposed, an aggrieved party

sufficiently alerts the district court of its responsibility to

render an individualized explanation addressing those arguments,

and thus preserves its claim.”).

Although the district court is not required to

“robotically tick through § 3553(a)’s every subsection,” United

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it must

“place on the record an individualized assessment based on the

particular facts of the case before it. This individualized

assessment need not be elaborate or lengthy, but it must provide

a rationale tailored to the particular case at hand and adequate

to permit meaningful appellate review.” Carter, 564 F.3d at 330

(internal quotation marks, footnote, and citation omitted).

This is true even when, as here, the district court sentences a

defendant within the applicable Guidelines range. Id.

Other than noting that Olislager had a prior

conviction and that his offense was not merely passive, the

district court did not address any of the § 3553(a) factors.

The court also failed to provide an individualized explanation

for its determination that a 235-month sentence would accomplish

the sentencing goals set out in § 3553(a). Under Lynn, we find

that this error is not harmless. Id. at 582. Accordingly, we

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vacate Olislager’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