UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4540
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS MAYHEW CURRY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:05-cr-00282-JAB-1)
Submitted: April 25, 2014 Decided: May 2, 2014
Before KING, GREGORY, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Terry M.
Meinecke, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Curry appeals the district court’s imposition
of 528 months’ imprisonment on numerous drug trafficking and
firearms counts on resentencing following our decision in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
Curry argues that his sentence is substantively unreasonable.
We vacate and remand for resentencing.
We review a sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. Curry does not
argue that the district court improperly calculated the advisory
Guidelines range or committed any other procedural error. See
id. at 49-51 (discussing procedural reasonableness).
If there is no significant procedural error, we review
the sentence for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.” Id. at 51. If the
sentence is within or below the properly calculated Guidelines
range, we apply a presumption on appeal that the sentence is
substantively reasonable. United States v. Yooho Weon, 722 F.3d
583, 590 (4th Cir. 2013). Such a presumption is rebutted only
if the defendant shows “that the sentence is unreasonable when
measured against the § 3553(a) factors.” United States v.
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Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks omitted).
On appeal, Curry’s sole argument is that his sentence
is not substantively reasonable based an alleged discrepancy in
the imposition of his sentence. Counts 1, 2, 5, 6, 7, and 8 all
had the same advisory Guidelines range. However, Counts 5 and 8
were subject to a 60-month mandatory minimum sentence. After
recognizing Curry’s rehabilitation efforts, the district court,
without explanation, sentenced Curry to 60 months’ imprisonment
on Counts 5 and 8 but to a Guidelines range sentence of 168
months’ imprisonment for Counts 1, 2, 6, and 7, yielding the
same overall term of 528 months’ imprisonment that the court had
imposed during the prior sentencing. Curry alleges on appeal
that the district court varied downward on Counts 5 and 8 in
response to Curry’s argument that he rehabilitated himself
following his initial sentencing and that this argument should
apply with equal to force to Counts 1, 2, 6, and 7, which are
arguably less serious offenses than Counts 5 and 8.
Although the district court stated during the
sentencing hearing that a Guidelines sentence on Counts 1, 2, 6,
and 7 and on Counts 5 and 8 was appropriate, we conclude that
Curry has rebutted the presumption of reasonableness that
attaches to the Guidelines sentence for Counts 1, 2, 6, and 7
because the district court did not explain why it varied
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downward on Counts 5 and 8 but not on the other counts. See
United States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005)
(stating that appellate court must “decide . . . whether the
district judge imposed the sentence he . . . did for reasons
that are logical and consistent with the [18 U.S.C. § 3553(a)
(2012)] factors”). The district court did not identify any
factors distinguishing Counts 5 and 8 from Counts 1, 2, 6, and 7
other than the fact that Counts 5 and 8 were subject to
mandatory minimum sentences. Therefore, we conclude that it is
necessary to remand to the district court for resentencing. In
so doing, we offer no opinion on what Curry’s proper sentence on
remand should be.
Accordingly, we vacate the district court’s judgment
and remand for resentencing. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED AND REMANDED
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