Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4117
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
KEVIN LAMONT JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville.
Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-00282-GRA-3)
Submitted:
September 28, 2010
Decided:
October 15, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South

Carolina, for Appellant. William N. Nettles, United States
Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin
Lamont
Jackson
appeals
from
his
57-month
sentence imposed pursuant to his guilty plea to a crack cocaine

conspiracy.
not
On appeal, he claims that the district court did
adequately
consider
the
statutory
sentencing
factors
failed to adequately explain the sentence imposed.
and
We vacate
and remand for further proceedings.

Jacksons presentence report (PSR) determined that
the Guidelines range was 57 to 71 months.
At his sentencing
hearing, neither party objected, and the court adopted the PSRs
findings.
The
court
appropriate sentence.
then
heard
from
the
parties
on
the
Jacksons counsel argued for a variance
sentence based upon (1) the crack/powder cocaine disparity and

(2)
Jacksons
crime).
age
(he
was
teenager
when
he
committed
the
Counsel contended that a sentence within the range of
15 to 21 months 1 would be quite a shock to a twenty-year-old

with a Criminal History Category I who had never done any prison
time.
crime
Counsel also argued that sentencing Jackson as if his

involved
powder
cocaine
would
satisfy
the
needs
of
society to punish.
According to counsel, this is the range that would have

been calculated if Jacksons offense involved powder rather than
crack cocaine.
The
court
questioned
Jackson
about
his
employment
history, noting that Jackson was unemployed between 2007 and

2009.
The court also questioned Jackson about his termination
from PTI. 2
dropped
from
The court appeared to believe that Jackson was

PTI
because
he
started
selling
drugs
again.
Jackson responded that he had not sold drugs since entering PTI
and that he was terminated because of the federal charge against
him.
The
Government
did
not
address
Jacksons
arguments
or
propose an appropriate sentence.

The court stated that it considered the factors under
18 U.S.C. Section 3553(a) [2006] and considered the guidelines
as advisory only.
The court concluded that the purposes of
the statute are accomplished with a guidelines sentence.
The
court offered no further reasoning or findings and imposed a

sentence of 57 months.
In evaluating the sentencing courts explanation of a
selected
sentence,
we
have
consistently
held
that,
while
district court must consider the statutory factors and explain

its sentence, it need not explicitly discuss every factor on the
record, particularly when the court imposes a sentence within a
properly calculated Guidelines range.
445 F.3d 339, 345 (4th Cir. 2006).
2
United States v. Johnson,

But, at the same time, the
Apparently a state pre-trial intervention program.
district court must make an individualized assessment based on

the facts presented.
(2007).
Gall v. United States, 552 U.S. 38, 50
Moreover,
individualized
the
reasons
district
that
court
justify
must
state
the
even
when
sentence,
sentencing a defendant within the Guidelines range.

United
States,
551
U.S.
338,
356-57
(2007).
Rita v.
The
reasons
articulated by the district court for a given sentence need not

be couched in the precise language of 3553(a), so long as
the
reasons
can
be
matched
to
factor
appropriate
for
consideration . . . and [are] clearly tied [to the defendants]

particular situation.
United States v. Moulden, 478 F.3d 652,
658 (4th Cir. 2007).

In United States v. Carter, 564 F.3d 325 (4th Cir.
2009), we held that, while the individualized assessment of each
defendant need not be elaborate or lengthy, it must provide a
rationale
tailored
to
the
particular
adequate to permit appellate review.
case
at
hand
564 F.3d at 330.
and
be
Thus, a
recitation of the 3553 factors and purposes is insufficient.

Likewise, a conclusory statement that a specific sentence is the
proper
one
does
responsibilities.
not
Id.
at
satisfy
328-29.
the
In
district
addition,
courts
we
cannot
presume that the district court adopted the arguments of one of

the parties while imposing sentence; an appellate court may not
guess at the district courts rationale.
4
Id. at 329-30.
Here, the district courts reasoning clearly violated

Carter.
The
court
merely
stated
that
the
purposes
of
the
statute were accomplished by a Guidelines sentence and provided

no
other
reasoning.
Moreover,
the
district
court
did
not
address the undisputed mitigating factors raised by Jackson, and

the record reflects that the court may have been confused as to
the reasons that Jacksons PTI was terminated.
The Government cites United States v. Hernandez, 603
F.3d 267 (4th Cir. 2010), to support its contention that the
district courts reasoning was sufficient.
reviewed
Hernandezs
claim
that
the
In Hernandez, we
district
court
did
not
provide individualized reasoning for plain error, as Hernandez

had not objected below.
We then determined that the district
courts statement that it had considered the 3553 factors and

the advisory Guidelines range and concluded that the purposes
of the statute are accomplished with a guideline sentence was
sufficient.
603
F.3d
at
269.
We
held
that,
because
the
district court heard argument, considered the statutory factors,

and imposed the bottom-of-the-Guidelines sentence requested by
Hernandez,
Hernandezs
unreasonable.
sentence
was
not
procedurally
Id. at 271-72.
While the district courts reasoning in Hernandez was

essentially identical to the district courts reasoning in this
case,
we
find
Hernandez
distinguishable
5
in
two
important
respects: (1) Jackson requested a sentence below the advisory

Guidelines range and, thus, his claim is reviewed for harmless
error rather than plain error, see United States v. Boulware,
604 F.3d 832, 838 (4th Cir. 2010), and (2) Jackson did not
receive the sentence he requested.
that
the
district
court
abused
Applying Carter, we conclude
its
discretion
by
failing
to
provide individualized reasoning for the sentence imposed.

Thus, Jacksons sentence should be vacated unless we
determine that the error was harmless.
592 F.3d 572, 581 (4th Cir. 2010).
non-constitutional,
non-structural
United States v. Lynn,

To avoid reversal for
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 or
influence on the result.
only
briefly
harmless.
and
Id. at 585.
conclusorily
that
The Government argues

any
alleged
error
was
Accordingly, we conclude that the record does not
conclusively
show
that
explicit
consideration
of
[Jacksons]
arguments would not have affected the sentence imposed.
Id.
As such, we vacate Jacksons sentence and remand for

the district court to properly address Jacksons arguments for a
lower
sentence
and
sentence imposed.
facts
and
legal
provide
individualized
reasoning
for
the
We dispense with oral argument because the

contentions
are
6
adequately
presented
in
the
materials
before
the
court
and
argument
would
not
aid
the
decisional process.
VACATED AND REMANDED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

September 28, 2010

October 15, 2010

Before MOTZ, GREGORY, and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South

Unpublished opinions are not binding precedent in this circuit.

sentence imposed pursuant to his guilty plea to a crack cocaine

On appeal, he claims that the district court did

failed to adequately explain the sentence imposed.

and remand for further proceedings.

Jacksons counsel argued for a variance

sentence based upon (1) the crack/powder cocaine disparity and

Counsel contended that a sentence within the range of

15 to 21 months 1 would be quite a shock to a twenty-year-old

Counsel also argued that sentencing Jackson as if his

According to counsel, this is the range that would have

history, noting that Jackson was unemployed between 2007 and

The court also questioned Jackson about his termination

The court appeared to believe that Jackson was

propose an appropriate sentence.

The court concluded that the purposes of

the statute are accomplished with a guidelines sentence.

court offered no further reasoning or findings and imposed a

district court must consider the statutory factors and explain

United States v. Johnson,

Apparently a state pre-trial intervention program.

district court must make an individualized assessment based on

Gall v. United States, 552 U.S. 38, 50

sentencing a defendant within the Guidelines range.

articulated by the district court for a given sentence need not

consideration . . . and [are] clearly tied [to the defendants]

United States v. Moulden, 478 F.3d 652,

658 (4th Cir. 2007).

adequate to permit appellate review.

564 F.3d at 330.

recitation of the 3553 factors and purposes is insufficient.

presume that the district court adopted the arguments of one of

Here, the district courts reasoning clearly violated

statute were accomplished by a Guidelines sentence and provided

address the undisputed mitigating factors raised by Jackson, and

provide individualized reasoning for plain error, as Hernandez

We then determined that the district

courts statement that it had considered the 3553 factors and

district court heard argument, considered the statutory factors,

While the district courts reasoning in Hernandez was

respects: (1) Jackson requested a sentence below the advisory

Applying Carter, we conclude

provide individualized reasoning for the sentence imposed.

United States v. Lynn,

presented here], the party defending the ruling below . . .

The Government argues

Accordingly, we conclude that the record does not

arguments would not have affected the sentence imposed.

As such, we vacate Jacksons sentence and remand for

We dispense with oral argument because the