UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4909
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY RAY CROFT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:07-cr-00116-HMH-1)
Submitted: July 29, 2011 Decided: August 11, 2011
Before WILKINSON, MOTZ, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, A. Lance Crick, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Without the benefit of a written plea agreement, Jimmy
Ray Croft pled guilty to using and carrying a firearm during and
in relation to, and possessing a firearm in furtherance of, a
drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2006). Croft was sentenced to eighty-four
months’ imprisonment, which was a twenty-four-month upward
variance from his sixty-month sentencing range. See 18 U.S.C.
§ 924(c)(1)(A)(i); U.S. Sentencing Guidelines Manual § 2K2.4(b)
(2009). Croft timely appealed.
On appeal, Croft argues the district court committed
procedural error in failing to individually assess his case in
light of the 18 U.S.C. § 3553(a) (2006) sentencing factors and
in failing to provide a reasoned explanation for the upward
variance. For the reasons that follow, we agree. Accordingly,
we vacate Croft’s sentence and remand this case to the district
court for resentencing.
In evaluating the sentencing court’s explanation of a
selected sentence, we have consistently held that, while a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference 18 U.S.C.
§ 3553(a) or discuss every factor on the record, particularly
when the court imposes a sentence within a properly calculated
Guidelines range. United States v. Johnson, 445 F.3d 339, 345
2
(4th Cir. 2006). At the same time, however, the district court
“must make an individualized assessment based on the facts
presented.” Gall v. United States, 552 U.S. 38, 50 (2007).
Moreover, the district court must state the individualized
reasons that justify a sentence. Rita v. United States, 551
U.S. 338, 356–57 (2007). The reasons articulated by the
district court for a given sentence need not be “couched in the
precise language of § 3553(a),” so long as the “reasons can be
matched to a factor appropriate for consideration . . . and
[are] clearly tied to [the defendant’s] particular situation.”
United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007).
In United States v. Carter, we held that, while the
individualized assessment of each defendant “need not be
elaborate or lengthy, . . . it must provide a rationale tailored
to the particular case at hand and be adequate to permit
meaningful appellate review.” 564 F.3d 325, 330 (4th Cir. 2009)
(internal quotations omitted). Thus, a recitation of the §
3553(a) factors and purposes is insufficient. Likewise, a
conclusory statement that a specific sentence is the proper one
does not satisfy the district court’s responsibilities. See
Carter, 564 F.3d at 328–29. In addition, we cannot presume that
the district court adopted the arguments of one of the parties
while imposing sentence; an appellate court may not guess at the
district court’s reasoning. Id. at 329-30.
3
Here, the court correctly stated Croft’s Guidelines
range 1 and discussed three aspects of Croft’s case germane to the
§ 3553(a) sentencing factors: (1) that Croft’s inconsistent
employment history reflected that he supported himself as a drug
dealer; (2) that it could not identify any non-drug-related
purpose for carrying a loaded .357 Magnum; and (3) that
contemporaneous with his possession of the firearm, Croft
possessed 210.87 grams of crack cocaine. These matters were
clearly relevant to the nature and circumstances of the offense,
Croft’s history and characteristics, and the need for the
sentence to reflect the seriousness of the offense and to
provide just punishment for the offense. See 18 U.S.C.
§ 3553(a)(1), (a)(2)(A). However, in identifying the drug
quantity seized from Croft, the court misstated the facts of the
case, as it is undisputed that Croft possessed 10.87 grams of
crack cocaine, not 210.87 grams. 2
We first hold the district court’s analysis of the
§ 3553(a) factors is tainted by the court’s undisputed
misstatement as to the quantity of crack cocaine found on Croft.
1
We note that the court granted Croft’s motion for
reconsideration of the sentence imposed at his first sentencing
hearing. At the second sentencing hearing, the court correctly
stated Croft’s advisory Guidelines range.
2
The parties agree that this was an error by the district
court. (See Appellant’s Br. at 9; Appellee’s Br. at 12 n.3).
4
Removing this erroneously stated fact from the mix, we cannot
conclude that the district court’s explanation for the upward
variance was individualized and reasoned. The two other facts
identified by the district court — Croft’s contemporaneous
possession of a loaded firearm, a quantity of drugs, and several
hundred dollars in cash and lack of regular employment — cannot
be said to distinguish this case from the average § 924(c)
conviction. Thus, we are constrained to accept Croft’s
contention that the district court’s decision to vary upward was
improperly influenced by its erroneous statement of the quantity
of drugs found on Croft.
We therefore conclude the court’s justification for
the variance sentence is insufficient as it does not reflect a
reasoned basis for the conclusion that a Guidelines sentence did
not satisfy the statutory sentencing factors. See Rita, 551
U.S. at 356 (explaining that the district court must articulate
sufficient justification for its sentencing decision “to satisfy
the appellate court that [the district court] has . . . a
reasoned basis for exercising [its] own legal decisionmaking
authority”); see also United States v. Boulware, 604 F.3d 832,
837 (4th Cir. 2010) (citing Rita for the same). Furthermore,
Croft preserved his claim for appellate review by requesting a
sentence below the one he received. Accordingly, our review of
5
the issue is for harmless error rather than plain error. See
Boulware, 604 F.3d at 838.
“To avoid reversal for non-constitutional, non-
structural errors like [the one presented here], the party
defending the ruling below (here, the Government) bears the
burden of demonstrating that the error was harmless, i.e. that
it did not have a substantial and injurious effect or influence
on the result.” United States v. Lynn, 592 F.3d 572, 585 (4th
Cir. 2010) (internal quotation marks omitted). The Government
maintains that any error here was harmless because the court
could have identified several other § 3553(a) factors that would
have supported the variance sentence. The Government further
asserts that, given Croft’s lack of education and his substance
abuse problems, “[a] longer period of incarceration would
provide Croft with more opportunities for educational or
vocational training as well as medical care and other
correctional treatment.” (Appellee’s Br. at 14). Finally, the
Government claims that remanding this case to the district court
would waste judicial resources given that the court twice
sentenced Croft to eighty-four months in prison.
Because “the extent of harm caused by [the] procedural
sentencing error [is] not immediately clear,” we cannot conclude
that the error in this case was harmless. Lynn, 592 F.3d at
585. Although the Government aptly identifies facts relevant to
6
other § 3553(a) factors that the court could have cited to
support the upward variance, the court did not state that any of
those facts influenced its sentencing decision. Thus, we hold
the Government has not satisfied its burden of demonstrating
harmlessness.
Based on the foregoing, we vacate Croft’s sentence and
remand this case to the district court. 3 We indicate no view as
to the appropriate sentence to be imposed on Croft, leaving that
determination to the district court. 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.
VACATED AND REMANDED
3
Because Croft did not challenge his conviction on appeal,
we have not considered any issues relevant to his conviction.
7