US v. Johnnie Black, No. 09-5106 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5106 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNIE BLACK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:09-cr-00022-JRS-1) Submitted: July 9, 2010 Decided: July 26, 2010 Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Valencia Roberts, Assistant Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnnie Black pleaded guilty to possession of firearms and ammunition by a convicted felon and received a fifty-month sentence. On appeal, Black argues that his sentence is procedurally unreasonable because the court did not sufficiently explain the basis for the sentence imposed. We agree that the sentence and is procedurally unreasonable remand for resentencing. Counsel asserts procedural error because mitigating issues raised that it by the did not Black district court adequately or refer § 3553(a) (2006) prior to imposing the sentence. committed consider to 18 the U.S.C. The Government argues that the procedural reasonableness of the sentence is to be reviewed for plain error, and that Black cannot demonstrate prejudice. The Government contends that even if the sentence is reviewed for harmless error, none resulted because of Black s extensive criminal history and he was attempting to shoot into an occupied vehicle while illegally possessing a firearm. After United States v. Booker, 543 U.S. 220 (2005), we review a sentence for reasonableness, discretion standard of review. 38, 51 (2007). to ensure using an abuse of Gall v. United States, 552 U.S. The first step in this review requires the court that procedural error. the district court committed no significant United States v. Evans, 526 F.3d 155, 161 2 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008). Procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51. [I]f a party repeats on appeal a claim of procedural sentencing error . . . which it has made before the district court, [this Court] review[s] for abuse of discretion and will reverse if such an abuse of discretion is found unless the Court can conclude that the error was harmless. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). United States v. For instance, the district court must state in open court the particular reasons supporting its chosen sentence [and] 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) (internal citations and quotation marks omitted). If an aggrieved party sufficiently alerts the district court of its responsibility to render an individualized explanation by drawing arguments from § 3553 for a sentence different than the one ultimately 3 imposed, the party sufficiently preserves its claim. Lynn, 592 F.3d at 578. When counsel requests a sentence at the bottom of the Guidelines range or below, the error is preserved. Id. at 581. We conclude that, under Lynn, Black s arguments in the district court for a sentence at the lower end of the Guidelines range preserved appeal. his claim of procedural Lynn, 592 F.3d at 581. sentencing error on These arguments sufficiently alert[ed] the district court of its responsibility to render an individualized explanation addressing those arguments. 578. Id. at Therefore, the court reviews any procedural sentencing error for abuse of discretion and reverses unless the error was harmless. Id. at 579. The district court erred because it failed to explain why it imposed the chosen sentence. 581-82. See Lynn, 592 F.3d at The court did not address the mitigating factors raised by Black, nor provide any other reason for choosing the sentence imposed. We cannot presume that adopted the Government s arguments. the district court simply The error was not harmless because the district court s lack of explanation for imposing this condition resulted in a record insufficient to permit even routine review for substantive reasonableness. Id. at 582 remand for (citation and quotation marks omitted). We re-sentencing. therefore vacate the sentence and We dispense with oral argument because the facts 4 and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 5
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