UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERME ELISEO PACHECO MAYEN, a/k/a Elmer Garcia, a/k/a Miguel
Abrego, a/k/a Elmer Amaya,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cr-00176-CMH-1)
Submitted: May 27, 2010 Decided: June 18, 2010
Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Kevin R. Brehm, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Jason H. Poole, Sarah Roque, Special Assistant
United States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Erme Eliseo Pacheco Mayen pleaded guilty to illegal
reentry of a deported alien who was an aggravated felon and
received a fifty-one-month sentence. On appeal, Mayen argues
that the district court erred in failing to rule on an objection
to the Government’s refusal to move for a third level of
reduction under U.S. Sentencing Guidelines Manual § 3E1.1 (2009)
and that his sentence is procedurally unreasonable because the
court did not sufficiently explain the basis for the sentence
imposed. We find no error in the proceeding regarding the
additional reduction for acceptance of responsibility, but agree
that the sentence is procedurally unreasonable and remand for
resentencing.
Mayen argues that the district court failed to rule on
his objection to the Government’s refusal to move for a third
point of reduction for acceptance of responsibility. He
contends that he was prejudiced by the court’s failure because,
if the challenge was successful, the Sentencing Guidelines range
would have been 46 to 57 months, instead of the advisory 51-63
month range. The Government argues that Mayen conceded his
original position and withdrew his objection at sentencing;
therefore there was no outstanding objection on which to rule.
Even if the objection was preserved, the Government argues that
the issue was not reasonably in dispute because counsel did not
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contend that the Government’s discretionary decision was
improper.
Here, Mayen did not raise any challenge based on
improper motive to the Government’s discretionary decision not
to move for the third level of reduction. The district court
may require that the Government file for a reduction under USSG
§ 3E1.1(b) when its refusal to do so is based on an
unconstitutional motive. United States v. Chase, 466 F.3d 310,
315 n.4 (4th Cir. 2006). Mayen did not allege such a motive,
nor does one appear on the record. Thus, any error by the
district court in failing to specifically rule on the objection
was harmless.
Next, counsel asserts that the district court did not
adequately consider the mitigating issues raised by Mayen before
imposing sentence. After United States v. Booker, 543 U.S. 220
(2005), we review 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.), cert. denied, 129 S. Ct. 476 (2008). Procedural
errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
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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.
“[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.” United States v.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010). 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 citations and 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.
When counsel requests a sentence at the bottom of the Guidelines
range or below, the error is preserved. Id. at 581. In a
post-Lynn case, United States v. Thompson, 595 F.3d 544 (4th
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Cir. 2010), the court explained that “a defendant need only ask
for a sentence outside the range calculated by the court prior
to sentencing in order to preserve his claim for appellate
review.” 595 F.3d at 546.
We conclude that, under Lynn and Thompson, Mayen’s
arguments in the district court for a below-Guidelines range
sentence preserved his claim of procedural sentencing error on
appeal. Lynn, 592 F.3d at 581; Thompson, 595 F.3d at 546.
Therefore, we review any procedural sentencing error 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 the chosen sentence. See Lynn, 592 F.3d at
581-82. The court merely stated that it took into account the
§ 3553(a) sentencing factors and the Guidelines range. It did
not address the mitigating factors raised by Mayen, nor provide
any other reason for choosing the sentence imposed. We cannot
presume that the district court simply adopted the Government’s
arguments. The error was not harmless because the district
court’s lack of explanation for imposing this sentence resulted
in “a record insufficient to permit even routine review for
substantive reasonableness.” Id. at 582 (citation and quotation
marks omitted).
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We therefore vacate the 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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