US v. Charles Hardee, No. 09-5103 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5103 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES A. HARDEE, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-01172-TLW-1) Submitted: August 31, 2010 Decided: September 16, 2010 Before DUNCAN, AGEE, and DAVIS, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. James P. Rogers, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, William E. Day, II, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles A. Hardee appeals the 108-month sentence he received after pleading guilty to possession of child pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West 2000 & Supp. 2010). In the district court, Hardee moved for a sentence below the Guideline range, and the Government moved for an upward support departure. of their Both motions. parties The presented district witnesses court denied in both motions, then heard further argument for sentencing within the applicable Guideline range. at the low end of this While Hardee argued for a sentence range, the district court sentenced Hardee at the top of that range, to 108 months imprisonment. On appeal, Hardee argues that his sentence is procedurally unreasonable because the district court failed to provide an adequate explanation of the chosen sentence or to individually tailor his sentence by applying the relevant 18 U.S.C. § sentence 3553(a) is (2006) substantively factors. He also unreasonable. asserts Although that we his affirm Hardee s conviction, which he does not challenge on appeal, we vacate his sentence and remand to the district court for resentencing. This court reviews a sentence for using an abuse of discretion standard of review. States, 552 U.S. 38, 51 (2007). 2 reasonableness, Gall v. United The first step in this review requires us to ensure that the significant procedural error. 155, 161 (4th Cir. 2008). consider explain the the § 3553(a) chosen district court committed no United States v. Evans, 526 F.3d Procedural errors include failing to factors sentence. or Gall, failing 552 to U.S. at adequately 51. The district court must make an individualized assessment based on the facts presented by applying the relevant § 3553(a) factors to the circumstances of the case. Id. at 50-51. While the district court need not robotically tick through § 3553(a) s every subsection, particularly when imposing a within-Guidelines sentence, United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), the district judge should 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) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). In cases where, as here, the district court imposes a within-Guideline sentence, while the still district court individualized, may provide explanation. a less United extensive, States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010). to allow appellate for court However, that explanation must be sufficient meaningful need not appellate review such guess the district 3 at that the court s rationale. Carter, 564 F.3d at 329-30 (internal quotation marks omitted). It is undisputed that Hardee preserved his claim of procedural error by moving for a sentence below the Guideline range, and, when this motion was denied, by arguing sentence at the low end of the Guideline range. v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). district court s consideration of Hardee s for a United States Thus, we review the arguments and the sufficiency of its explanation of the chosen sentence for abuse of discretion. We conclude that the discretion in sentencing Hardee. district court abused its While the district court heard extensive testimony from the parties at the sentencing hearing, and gave specific these the parties sentences, arguments sentence. nor multiple the court opportunities neither explained its to argue specifically reasons for for addressed the chosen We will reverse this type of preserved error unless we find that the error was harmless. Id. at 581. To avoid reversal for non-constitutional, non-structural errors like [the one presented here], the party defending the ruling below . . . bears the burden of demonstrating that the error was harmless, i.e. that it did not have a substantial and injurious effect on the result. omitted). Id. at 585 (internal quotation marks and citation The Government argues in its brief that the district 4 court did not procedurally err in imposing sentence, but does not argue harmless. in the alternative that any alleged error was Having found procedural error, we do not find it harmless. We cannot conclude that the district court s explicit consideration of [Hardee s] arguments would not have affected the sentence imposed. Id. Accordingly, although we affirm Hardee s conviction, which is unchallenged, we vacate his sentence and remand for resentencing. 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. AFFIRMED IN PART, VACATED IN PART, AND REMANDED Because we find Hardee s sentence procedurally infirm, we do not address its substantive reasonableness. See Carter, 564 F.3d at 330 n.4 ( Having found the sentence procedurally unreasonable, . . . we cannot review the sentence for substantive reasonableness. ); United States v. Stephens, 549 F.3d 459, 465 (4th Cir. 2008) ( If, and only if, the district court s sentencing decision is procedurally sound, we will then consider [its substantive reasonableness].). Accordingly, our decision to vacate Hardee s sentence should not be construed on remand as evidencing any view as to the length of the sentence that is substantively appropriate. 5
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