UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDALL CORNETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00056-MR-1)
Submitted: August 20, 2010 Decided: September 15, 2010
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Eric H. Imperial, LAW OFFICES OF ERIC H. IMPERIAL, Washington,
D.C., for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randall Cornette appeals his conviction and 220-month
sentence for possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1) (2006). Cornette’s attorney filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
contending that there are no meritorious issues on appeal.
Cornette filed a pro se supplemental brief and the Government
elected not to file a brief. 1 For the reasons that follow, we
affirm Cornette’s conviction but vacate his sentence and remand
for resentencing.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts
are charged with reviewing sentences for both procedural and
substantive reasonableness. Id.
In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 49-50. We then
1
Though Cornette waived his right to appeal in his plea
agreement, the Government has not sought enforcement of the
waiver. Accordingly, we will conduct our review pursuant to
Anders. United States v. Poindexter, 492 F.3d 263, 271 (4th
Cir. 2007) (stating that, if Anders brief is filed in case with
appeal waiver, Government’s failure to respond “allow[s] this
court to perform the required Anders review”).
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determine whether the district court failed to consider the 18
U.S.C. § 3553(a) (2006) factors and any arguments presented by
the parties, treated the guidelines as mandatory, selected a
sentence based on “clearly erroneous facts,” or failed to
sufficiently explain the selected sentence. Id. at 51; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally,
we review the substantive reasonableness of the sentence,
“taking into account the ‘totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.’” Pauley, 511 F.3d at 473 (quoting Gall, 552 U.S. at
51).
Our review of the record as required by Anders leads
us to conclude that the district court committed procedural
error by failing to adequately explain Cornette’s sentence.
“When rendering a sentence, the district court ‘must make an
individualized assessment based on the facts presented.’”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 552 U.S. at 50). An individualized assessment
results from the application of the relevant 18 U.S.C. § 3553(a)
(2006) factors to the particular circumstances of the defendant.
Id.. Additionally, the district court must articulate, in open
court, the particular reasons behind its sentence, “set[ting]
forth enough to satisfy the appellate court that [the district
judge] has considered the parties’ arguments and has a reasoned
3
basis for exercising his own legal decisionmaking authority.”
Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
A court’s failure to satisfactorily articulate its
individualized assessment constitutes reversible error. Id.
Here, the district court provided no explanation
whatsoever for its chosen sentence, but merely noted in
conclusory terms that it had considered the § 3553(a) factors.
As the record does not demonstrate that the district court
conducted the requisite individualized assessment, and the court
did not provide reasoning for its chosen sentence sufficient to
permit effective appellate review, we hold that Cornette’s
sentence is not procedurally reasonable. Cornette’s attorney
argued for a sentence different than that ultimately imposed,
thereby preserving this issue for appeal. See United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010) (“By drawing 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.”). Accordingly, we conclude that the district court’s
failure to adequately explain Cornette’s sentence renders his
sentence procedurally unreasonable, requiring the sentence be
vacated.
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In accordance with Anders, we have examined the entire
record for any other meritorious issues and have found none. 2 We
therefore affirm Cornette’s conviction, vacate his sentence, and
remand for resentencing in accordance with Carter. We dispense
with oral argument because the facts and legal contentions are
adequately expressed in the materials before the court and
argument will not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
2
Additionally, we have reviewed the issues raised in
Cornette’s pro se supplemental brief and find them to be without
merit.
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