United States v. Shambry , 343 F. App'x 941 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4105
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLARENCE SHAMBRY,
Defendant - Appellant.
No. 09-4111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE L. TYLER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:08-cr-00018-jpj-pms-1; 2:08-cr-00019-jpj-
pms-1)
Submitted: August 20, 2009 Decided: September 11, 2009
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellants. Julia C. Dudley, United States Attorney, Jennifer
R. Bockhorst, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Clarence Shambry and Maurice L. Tyler (“Appellants”)
each pled guilty to one count of possession of contraband in a
federal prison, in violation of 18 U.S.C. § 1791(a)(2) (2006).
The Appellants each received a sentence of thirty months’
imprisonment. On appeal, the Appellants argue that their
respective sentences are procedurally unreasonable, as the
district court did not adequately explain the basis for either
sentence.
We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, ___, 128 S. Ct. 586, 597 (2007). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id.In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s advisory guideline range. Id. at
596-97. We then determine whether the district court failed to
consider the 18 U.S.C. § 3553(a) (2006) factors and any
arguments presented by the parties, selected a sentence based on
“clearly erroneous facts,” or failed to sufficiently explain the
selected sentence. Gall, 128 S. Ct. at 597. Critically,
the district court “must make an individualized
assessment based on the facts presented.” That is,
the sentencing court must apply the relevant § 3553(a)
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factors to the specific circumstances of the case
before it. Such individualized treatment is necessary
“to consider every convicted person as an individual
and every case as a unique study in the human failings
that sometimes mitigate, sometimes magnify, the crime
and the punishment to ensue.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 128 S. Ct. at 598) (internal citations omitted).
Under Carter, the sentencing judge is required to “‘state in
open court’ the particular reasons supporting its chosen
sentence.” Id. (quoting § 3553(c)). In so doing, the district
court must “‘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.’”
Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
Finally, assuming no procedural infirmity, we review
the substantive reasonableness of the sentence, “taking into
account the ‘totality of the circumstances, including the extent
of any variance from the [g]uidelines range.’” United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 128 S.
Ct. at 597). When reviewing the district court’s application of
the sentencing guidelines, this court reviews findings of fact
for clear error and questions of law de novo. United States v.
Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct.
2525 (2008).
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It is clear from the record that the district court
correctly calculated the Appellants’ respective advisory
guidelines ranges, and the Appellants do not argue otherwise.
However, despite the presumption of reasonableness that we
afford a within-guidelines sentence, Pauley, 511 F.3d at 473, we
conclude that the Appellants’ sentences are procedurally
unreasonable. The district court failed to state the reasons
supporting the Appellants’ sentences, or otherwise indicate that
it “considered the parties’ arguments and ha[d] a reasoned basis
for exercising [its] own legal decisionmaking authority.” Rita,
551 U.S. at 356; see also Carter, 564 F.3d at 328.
At sentencing, the Appellants’ counsel sought
sentences below the guidelines range based on the punishment
that the Appellants received from prison officials while
incarcerated. The sentencing judge gave one-sentence
explanations of the selected sentences, stating generally with
respect to each Appellant that he had consulted the § 3553(a)
factors and the advisory sentencing guidelines. Thus, the court
failed to indicate what factors in particular supported the
sentences, or the manner in which they did so. In neglecting
this step, the court did not give the Appellants the
individualized assessment required by Carter. Similarly, the
judge made no reference to the arguments made by the Appellants’
counsel during sentencing, and gave no indication that such
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arguments were considered. Thus, because “the record here does
not demonstrate that the district court conducted . . . an
[individualized] assessment and so does not reveal why the
district court deemed the sentence it imposed appropriate, we
cannot hold the sentence procedurally reasonable.” Carter, 564
F.3d at 330 (footnote omitted).
Accordingly, while we affirm the Appellants’
convictions, we vacate the sentences imposed by the district
court 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 further argument
would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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