United States v. Clark , 383 F. App'x 310 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4256
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS LAVERLEE CLARK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00170-JAB-1)
Submitted: May 24, 2010 Decided: June 17, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Laverlee Clark pled guilty to possession with
intent to distribute 15.7 grams of cocaine base, in violation of
21 U.S.C.A. §§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2009).
At sentencing, defense counsel argued for a variant sentence
below the guidelines range of 188 to 235 months’ imprisonment,
citing the sentencing disparities between crack and powder
cocaine. After counsel’s arguments and Clark’s allocution, the
district court sentenced Clark to 200 months’ imprisonment. The
court, however, did not specifically discuss the applicability
of any 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009) factors or
Clark’s sentencing disparity argument, or otherwise explain its
rationale supporting the chosen sentence. Clark appeals his
sentence.
On appeal, Clark argues his sentence is unreasonable
because it is greater than necessary to accomplish the goals of
§ 3553(a) in light of recent determinations by the Justice
Department and House Judiciary Committee that the sentencing
disparity between crack and powder cocaine should be eliminated.
Finding the sentence procedurally unreasonable, we vacate the
sentence and remand for resentencing.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This requires consideration of both the procedural and
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substantive reasonableness of a sentence. Id. at 51; see also
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
Properly preserved claims of procedural error are subject to
harmless error review. United States v. Thompson, 595 F.3d 544,
546 (4th Cir. 2010); Lynn, 592 F.3d at 576. If the sentence is
free of significant procedural error, the appellate court
reviews the substantive reasonableness of the sentence. Lynn,
592 F.3d at 575; United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007).
After determining whether the district court properly
calculated the defendant’s advisory guideline range, we must
decide if the sentence imposed was procedurally reasonable.
This determination involves deciding whether the district court
considered the § 3553(a) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Lynn, 592 F.3d at 575-76; see United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding
that, while the “individualized assessment need not be elaborate
or lengthy . . . it must provide a rationale tailored to the
particular case . . . and [be] adequate to permit meaningful
appellate review”). The district court’s explanation must be
sufficient to satisfy us that it “has considered the parties’
arguments and has a reasoned basis for exercising its own legal
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decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007).
By raising the issue below, Clark properly preserved
review of his claim that his sentence is unreasonable based on
sentencing disparities between crack and powder cocaine.
Because Clark argued for a sentence different from the one
ultimately imposed, the district court had a responsibility to
render an individualized explanation addressing his arguments.
Thompson, 595 F.3d at 546; Lynn, 592 F.3d at 578.
We find the sentence imposed is not procedurally
reasonable because the district court failed to address Clark’s
sentencing disparity argument, to explain its individualized
assessment of the applicable § 3553(a) factors considered in
imposing the chosen sentence, or to articulate why it rejected
Clark’s argument for a below guidelines sentence. As a result,
we are simply unable to gauge whether the district court
considered the parties’ arguments and the applicable sentencing
factors and had a reasoned basis for its decision. Thus, this
court cannot determine whether the sentence was greater than
necessary or created an unwarranted sentencing disparity, as
Clark contends. Therefore, we find that the district court
abused its discretion and that the procedural error was not
harmless under Lynn and Thompson.
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Accordingly, we vacate Clark’s sentence and remand for
resentencing. We decline to review the propriety of Clark’s
disparity argument until the district court provides an adequate
basis for meaningful appellate review. 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.
VACATED AND REMANDED
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