UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THEODORE WILLIAM WELLS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cr-00249-CMH-1)
Submitted: August 6, 2015 Decided: August 18, 2015
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Joseph V. Longobardo, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theodore William Wells pleaded guilty to failure to
register as a sex offender, in violation of 18 U.S.C. § 2250(a)
(2012), and the district court sentenced him to 18 months’
imprisonment followed by 10 years of supervised release. Wells
appeals, arguing that the district court failed to explain its
reasons for imposing this sentence. We vacate and remand for
further proceedings consistent with this opinion.
In explaining a sentence, the district court is not
required to “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). However, the court “‘must make an individualized
assessment based on the facts presented’ when imposing a
sentence, ‘applying the relevant § 3553(a) factors to the
specific circumstances of the case’ and the defendant, and must
‘state in open court the particular reasons supporting its
chosen sentence.’” United States v. Lymas, 781 F.3d 106, 113
(4th Cir. 2015) (quoting United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009)) (emphasis omitted).
We conclude that the district court failed to adequately
explain its sentence. The court offered no explanation except
the general statement that it had considered the appropriate
§ 3553(a) factors and concluded that a sentence at the low end
of the Sentencing Guidelines was appropriate. Furthermore, the
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Government has not attempted to establish that the district
court’s error was harmless. See United States v. Thompson, 595
F.3d 544, 548 (4th Cir. 2010) (“For a procedural sentencing
error to be harmless, the government must prove that the error
did not have a substantial and injurious effect or influence on
the result.” (internal quotation marks omitted)).
Additionally, as the Government concedes, the district
court relied on an incorrect calculation of the Guidelines range
applicable to supervised release, in light of clarifying
amendments to the Guidelines range enacted after the presentence
report was drafted. U.S. Sentencing Guidelines Manual § 5D1.2
cmt. n.1 (2014); see United States v. Price, 777 F.3d 700, 711
(4th Cir.), cert. denied, 135 S. Ct. 2911 (2015) (“[T]he
Guidelines recommend that [a defendant convicted of failing to
register] receive a five-year term of supervised release, rather
than a term within a range of five years to life.”); United
States v. Collins, 773 F.3d 25, 31-32 (4th Cir. 2014), cert.
denied, 135 S. Ct. 1868 (2015). Because the district court did
not have the benefit of the Guidelines amendment at the time of
Wells’ sentencing, “[t]his Circuit's practice is to vacate and
remand for resentencing.” Collins, 773 F.3d at 32.
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Accordingly, we vacate Wells’ sentence and remand for
further proceedings consistent with this opinion. * We deny
Wells’ motion for leave to file a pro se brief. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the material before this court and
argument will not aid the decisional process.
VACATED AND REMANDED
*
Wells’ additional arguments that the district court lacked
authority to impose a 10-year term of supervised release are
frivolous. The district court had statutory authority to impose
“any term of years not less than 5, or life” for “any offense
under section . . . 2250.” 18 U.S.C. § 3583(k) (2012) (emphasis
added).
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