UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4828
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT TYRONE RICKETTS,
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-00667-GRA-1)
Submitted: August 18, 2010 Decided: September 9, 2010
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Tyrone Ricketts pleaded guilty to one count of
possession with intent to distribute and distribution of 5 grams
or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006), and was sentenced to 70 months imprisonment.
Ricketts appeals his sentence. Because the district court
committed procedural error during the sentencing proceeding, we
vacate Ricketts's sentence and remand for resentencing. *
On appeal, Ricketts challenges only the procedural
reasonableness of his sentence, arguing that the district court
failed to address his non-frivolous request for a sentence
outside the advisory Guidelines range. In reviewing any
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” we apply a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). We first “ensure that the district court committed no
significant procedural error.” Id. at 51. “If, and only if, we
find the sentence procedurally reasonable can we ‘consider the
substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.’” United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).
*
Ricketts has not challenged the integrity of his
conviction. Accordingly, that portion of the judgment is
affirmed.
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Procedural errors may include “failing to adequately
explain the chosen sentence — ncluding an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51. A
district court must “make an individualized assessment based on
the facts presented,” that is, the court must “apply the
relevant § 3553(a) factors to the specific circumstances of the
case before it.” Carter, 564 F.3d at 328 (internal quotation
marks and emphasis omitted). Thus, the district court “must
state in open court the particular reasons supporting its chosen
sentence” in order to permit proper appellate review. Id.
(internal quotation marks omitted). In addition, “‘[w]here the
defendant . . . presents nonfrivolous reasons for imposing a
different sentence’ than that set forth in the advisory
Guidelines, a district judge should address the party’s
arguments and ‘explain why he has rejected those arguments.’”
Id. (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).
A district court’s statement of reasons “need not be
elaborate or lengthy.” Id. at 330. And, “a court need not
‘robotically tick through § 3553(a)’s every subsection,’
particularly when imposing a within-Guidelines sentence.”
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010)
(quoting United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006)). However, a reviewing court likewise may not presume
that, “when imposing a sentence, the district court has silently
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adopted arguments presented by a party.” Carter, 564 F.3d at
329.
In this case, after Ricketts pleaded guilty, a Pre-
Sentence Report (PSR) was prepared. Pursuant to the PSR,
Ricketts had an offense level of 21 and a criminal history
category of V, yielding an advisory Guidelines range of 70 to 87
months imprisonment. Ricketts also faced a mandatory minimum
sentence of 60 months' imprisonment. Prior to sentencing,
Ricketts filed a sentencing memorandum, requesting that the
district court apply a 1:1 crack cocaine to powder cocaine ratio
in calculating his sentence and sentence him to the mandatory
minimum of 60 months' imprisonment.
During sentencing, the Government recounted the
findings of the PSR to the district court, and Ricketts agreed
with the Guidelines calculation. Immediately after this
recitation, the district court stated that it was “going along
with that recommendation.” The district court then sentenced
Ricketts to 70 months' imprisonment. The district court stated
that it had considered the U.S. Sentencing Guidelines Manual and
the 18 U.S.C. § 3553(a) (2006) factors in reaching its sentence.
Ricketts filed a timely appeal.
We agree with Ricketts that his sentence is
procedurally unreasonable. Ricketts provided a “nonfrivolous”
argument for a variance sentence — the crack cocaine to powder
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cocaine ratio — and the district court did not address the
argument, or even permit Ricketts to argue for a sentence
outside the Guidelines range, although we have previously
indicated that “the district court must allow both parties an
opportunity to argue for whatever sentence they deem
appropriate.” United States v. Abu Ali, 528 F.3d 210, 260 (4th
Cir. 2008) (internal quotation marks omitted). While the
district court did state that it was considering the § 3553(a)
factors, it provided no further explanation for the sentence.
In Lynn, we remanded for resentencing after finding
“no indication that the district court considered the
defendant’s nonfrivolous arguments prior to sentencing him,” and
the inadequacy of the district court’s statement of reasons was
illustrated by the fact that “the district court could have made
precisely the same statements in support of another sentence.”
Lynn, 592 F.3d at 585 (internal quotation marks omitted).
Likewise, there is no indication on the record that the district
court considered Ricketts’s arguments in favor of a below-
Guidelines sentence, and the district court’s statement of
reasons show no individualized assessment of Ricketts’s case.
The Government contends that, even assuming procedural
error, the error was harmless. In Lynn, we held that, in cases
involving procedural sentencing errors, “the party defending the
ruling below (here, the Government) bears the burden of
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demonstrating that the error was harmless, i.e. that it did not
have a ‘substantial and injurious effect or influence’ on the
result.” Lynn, 592 F.3d at 585 (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). As in Lynn, because the
district court did not even consider Ricketts’s arguments and
provided no individualized assessment or statement of reasons,
we “cannot say, with any fair assurance, that the district
court’s explicit consideration of [Ricketts’s] arguments would
not have affected the sentence imposed.” Id.
For the foregoing reasons, while we affirm Ricketts’s
conviction, we vacate his sentence and remand for resentencing.
We do not, of course, offer any view on the substantive
reasonableness of the sentence imposed. 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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