UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5106
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNIE BLACK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cr-00022-JRS-1)
Submitted: July 9, 2010 Decided: July 26, 2010
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Valencia
Roberts, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie Black pleaded guilty to possession of firearms
and ammunition by a convicted felon and received a fifty-month
sentence. On appeal, Black argues that his sentence is
procedurally unreasonable because the court did not sufficiently
explain the basis for the sentence imposed. We agree that the
sentence is procedurally unreasonable and remand for
resentencing.
Counsel asserts that the district court committed
procedural error because it did not adequately consider the
mitigating issues raised by Black or refer to 18 U.S.C.
§ 3553(a) (2006) prior to imposing the sentence. The Government
argues that the procedural reasonableness of the sentence is to
be reviewed for plain error, and that Black cannot demonstrate
prejudice. The Government contends that even if the sentence is
reviewed for harmless error, none resulted because of Black’s
extensive criminal history and he was attempting to shoot into
an occupied vehicle while illegally possessing a firearm.
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
2
(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
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 he has considered the parties’
arguments and has a reasoned basis for exercising his 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
3
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.
We conclude that, under Lynn, Black’s arguments in the
district court for a sentence at the lower end of the Guidelines
range 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, the court reviews any procedural sentencing
error for abuse of discretion and reverses 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 did not address the mitigating factors raised
by Black, 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 condition resulted in “a record insufficient to permit even
routine review for substantive reasonableness.” Id. at 582
(citation and quotation marks omitted).
We therefore vacate the sentence and remand for
re-sentencing. We dispense with oral argument because the facts
4
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
5