UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES A. HARDEE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-01172-TLW-1)
Submitted: August 31, 2010 Decided: September 16, 2010
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, William E. Day, II, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles A. Hardee appeals the 108-month sentence he
received after pleading guilty to possession of child
pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West
2000 & Supp. 2010). In the district court, Hardee moved for a
sentence below the Guideline range, and the Government moved for
an upward departure. Both parties presented witnesses in
support of their motions. The district court denied both
motions, then heard further argument for sentencing within the
applicable Guideline range. While Hardee argued for a sentence
at the low end of this range, the district court sentenced
Hardee at the top of that range, to 108 months’ imprisonment.
On appeal, Hardee argues that his sentence is
procedurally unreasonable because the district court failed to
provide an adequate explanation of the chosen sentence or to
individually tailor his sentence by applying the relevant 18
U.S.C. § 3553(a) (2006) factors. He also asserts that his
sentence is substantively unreasonable. Although we affirm
Hardee’s conviction, which he does not challenge on appeal, we
vacate his sentence and remand to the district court for
resentencing.
This court reviews 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
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requires us to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). Procedural errors include “failing to
consider the § 3553(a) factors” or “failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. The
district court must make an individualized assessment based on
the facts presented by applying the relevant § 3553(a) factors
to the circumstances of the case. Id. at 50-51.
While the district court need not “robotically tick
through § 3553(a)’s every subsection,” particularly when
imposing a within-Guidelines sentence, United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006), the district judge “‘should
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) (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)). In cases
where, as here, the district court imposes a within-Guideline
sentence, the district court may “provide a less extensive,
while still individualized, explanation.” United States v.
Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S.
Ct. 2128 (2010). However, that explanation must be sufficient
to allow for “meaningful appellate review” such that the
appellate court need “not guess at the district court’s
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rationale.” Carter, 564 F.3d at 329-30 (internal quotation
marks omitted).
It is undisputed that Hardee preserved his claim of
procedural error by moving for a sentence below the Guideline
range, and, when this motion was denied, by arguing for a
sentence at the low end of the Guideline range. United States
v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). Thus, we review the
district court’s consideration of Hardee’s arguments and the
sufficiency of its explanation of the chosen sentence for abuse
of discretion.
We conclude that the district court abused its
discretion in sentencing Hardee. While the district court heard
extensive testimony from the parties at the sentencing hearing,
and gave the parties multiple opportunities to argue for
specific sentences, the court neither specifically addressed
these arguments nor explained its reasons for the chosen
sentence. We will reverse this type of preserved error unless
we find that the error was harmless. Id. at 581. “To avoid
reversal for non-constitutional, non-structural errors like [the
one presented here], the party defending the ruling below . . .
bears the burden of demonstrating that the error was harmless,
i.e. that it did not have a substantial and injurious effect on
the result.” Id. at 585 (internal quotation marks and citation
omitted). The Government argues in its brief that the district
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court did not procedurally err in imposing sentence, but does
not argue in the alternative that any alleged error was
harmless. Having found procedural error, we do not find it
harmless. We cannot conclude that the district court’s
“explicit consideration of [Hardee’s] arguments would not have
affected the sentence imposed.” Id.
Accordingly, although we affirm Hardee’s conviction,
which is unchallenged, we vacate his 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
∗
Because we find Hardee’s sentence procedurally infirm, we
do not address its substantive reasonableness. See Carter, 564
F.3d at 330 n.4 (“Having found the sentence procedurally
unreasonable, . . . we cannot review the sentence for
substantive reasonableness.”); United States v. Stephens, 549
F.3d 459, 465 (4th Cir. 2008) (“If, and only if, the district
court’s sentencing decision is procedurally sound, we will then
consider [its substantive reasonableness].). Accordingly, our
decision to vacate Hardee’s sentence should not be construed on
remand as evidencing any view as to the length of the sentence
that is substantively appropriate.
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