UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4739
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD HOWARD SMILEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:14-cr-00044-GRA-1)
Submitted: April 1, 2015 Decided: April 27, 2015
Before SHEDD, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, William J. Watkins, Jr., Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Howard Smiley pled guilty to possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2012),
and the district court sentenced him to 78 months’ imprisonment,
a sentence at the bottom of the Sentencing Guidelines range.
Smiley appeals, challenging the procedural reasonableness of his
sentence. He asserts that the district court erred by failing
to explain why it rejected his arguments for a downward
variance. Among other things, the Government contends that even
if the district court erred, the error is harmless. We affirm.
A sentence is procedurally reasonable if the district court
properly calculates the defendant’s advisory Guidelines range,
gives the parties an opportunity to argue for an appropriate
sentence, considers the 18 U.S.C. § 3553(a) (2012) factors, and
sufficiently explains the selected sentence. See Gall v. United
States, 552 U.S. 38, 49-51 (2007). As we have explained,
“[r]egardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
The explanation must be sufficient to allow for “meaningful
appellate review,” (internal quotation marks omitted), such that
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we need “not guess at the district court’s rationale,” id. at
329.
Where, as here, the defendant properly preserves the issue
of procedural reasonableness below, this court must reverse
unless the error is harmless. United States v. Lynn, 592 F.3d
572, 576 (4th Cir. 2010). The Government bears the burden of
“demonstrat[ing] that the error did not have a substantial and
injurious effect or influence on the result and we can say with
fair assurance that the district court’s explicit consideration
of the defendant’s arguments would not have affected the
sentence imposed.” United States v. Boulware, 604 F.3d 832, 838
(4th Cir. 2010) (alterations and internal quotation marks
omitted).
After reviewing the sentencing transcript, we conclude that
the district court’s explanation was insufficient to render the
sentence procedurally reasonable. The court did not expressly
address why it rejected Smiley’s arguments for a downward
variance. Such a failure constitutes procedural error. Lynn,
592 F.3d at 585.
Nevertheless, the Government has satisfied its burden of
demonstrating that the district court’s procedural error is
harmless. The court adopted the findings of the presentence
report, establishing that it was familiar with Smiley’s history,
the nature and circumstances of the offense, and other details
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relevant to the consideration of the § 3553(a) factors.
Additionally, Smiley’s arguments for a downward variance were
not persuasive. See Boulware, 604 F.3d at 839-40 (explaining
that comparative weakness of defendant’s arguments for lower
sentence is one reason to decline to remand case for further
explanation). Moreover, the sentencing transcript reveals that
the district court must have considered Smiley’s arguments for a
downward variance; the variance was the only issue discussed at
sentencing, and the court imposed sentence immediately after
hearing defense counsel’s arguments and Smiley’s allocution.
See id. at 839. Thus, we are persuaded that, in this case, any
error in the district court’s explanation for the sentence it
imposed is harmless.
Accordingly, we affirm the district court’s judgment. 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.
AFFIRMED
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