United States v. Ricketts

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4828

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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

3
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

4
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

5
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