United States of America v.  MARK LYNN, a/k/a Mark Aaron Lynn

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5125 
MARK LYNN, a/k/a Mark Aaron
Lynn,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5126 
TAVARRAS RHODES, a/k/a Tavarras
Jerrell Rhodes,
Defendant-Appellant. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(3:08-cr-00082-RLW-1; 3:08-cr-00082-RLW-2)

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 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5132 
AVERY JERMAINE PEAKE,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(6:08-cr-00120-HMH-1)
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4341 
JEREMY VASHON TUCKER, a/k/a
Nicholas Wilson,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry F. Floyd, District Judge.
(7:08-cr-00666-HFF-1)
Argued: December 3, 2009
Decided: January 28, 2010
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
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No. 08-5125 vacated and remanded by published opinion; No.
08-5126 affirmed by published opinion; No. 08-5132 affirmed
by published opinion; No. 09-4341 vacated and remanded by
published opinion. Judge Motz wrote the opinion, in which
Judge Michael and Judge Gregory joined.
COUNSEL
(Nos. 08-5125, 08-5126) ARGUED: Gregory Bruce English,
ENGLISH & SMITH, Alexandria, Virginia, for Appellants.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:
Mark K. Tyndall, Richmond, Virginia, for Appellant Tavarras
Rhodes. Dana J. Boente, Acting United States Attorney, Alex-
andria, Virginia, for Appellee. (No. 08-5132) ARGUED:
David Wilson Plowden, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Greenville, South Carolina, for Appellant.
William Jacob Watkins, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for
Appellee. ON BRIEF: W. Walter Wilkins, United States
Attorney, Columbia, South Carolina, for Appellee. (No. 09-
4341) ARGUED: Benjamin Thomas Stepp, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenville, South
Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee. ON BRIEF: W. Walter Wilkins,
United States Attorney, Columbia, South Carolina; David C.
Stephens, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
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OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
In each of these cases, an appellant contends that the sen-
tencing court committed reversible procedural error by failing
to consider the required sentencing factors and offer an ade-
quate explanation for the sentence imposed. When a party
lodges such an objection in the sentencing court, we review
for abuse of discretion. We consolidated these cases on appeal
to resolve what standard of appellate review applies when a
party lodges such an objection for the first time on appeal. For
the reasons that follow, we conclude that we subject such
unpreserved objections only to plain-error review.
I.
The question at issue in these consolidated cases arises
from the Supreme Court’s recent sentencing decisions. In
United States v. Booker, 543 U.S. 220, 245, 262 (2005), the
Court rendered the once-mandatory federal Sentencing Guide-
lines "effectively advisory," and called on federal appellate
courts to review district courts’ sentences for "reasonable-
ness." In Gall v. United States, 552 U.S. 38, 51 (2007), the
Court explained that this reasonableness review has proce-
dural and substantive components.
First, an appellate court must review for procedural reason-
ableness,
ensur[ing] that the district court committed no signif-
icant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treat-
ing the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) [(2006)] factors,1 selecting
1These factors include the "nature and circumstances of the offense and
the history and characteristics of the defendant"; the need "to reflect the
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a sentence based on clearly erroneous facts, or fail-
ing to adequately explain the chosen sentence—
including an explanation for any deviation from the
Guidelines range.
Id. If the appellate court finds a sentence procedurally reason-
able, it then moves to the second step, in which it "consider[s]
the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard." Id.; see also Rita v. United
States, 551 U.S. 338, 351 (2007). These consolidated cases
present claims only of procedural error, i.e. that a sentencing
court assertedly "fail[ed] to consider the § 3553(a) factors"
and "adequately explain the chosen sentence," as required by
§ 3553(c). Gall, 552 U.S. at 51; see also Rita, 551 U.S. at
356.
The Supreme Court has held that when sentencing, a court
must demonstrate that it "considered the parties’ arguments
and ha[d] a reasoned basis for exercising [its] own legal deci-
sionmaking authority." Rita, 551 U.S. at 356. "[A] statement
of reasons is important" because it "helps [the sentencing]
process evolve," id. at 356, 357, "allow[s] for meaningful
appellate review[,] and . . . promote[s] the perception of fair
sentencing." Gall, 552 U.S. at 50.
We have addressed claims of procedural sentencing error in
several recent cases. Relying on Supreme Court guidance, we
have held that for every sentence—whether above, below, or
within the Guidelines range—a sentencing court must "place
on the record an ‘individualized assessment’ based on the par-
ticular facts of the case before it." United States v. Carter, 564
seriousness of the offense, to promote respect for the law, . . . to provide
just punishment . . . [,] . . . to afford adequate deterrence . . . [,] . . . to
protect the public from further crimes of the defendant[,] . . . to provide
the defendant with needed" training and care, "to avoid unwarranted sen-
tence disparities," and "to provide restitution to any victims"; "the kinds
of sentences available"; the Guidelines range; and pertinent policy state-
ments from the Sentencing Commission. 18 U.S.C. § 3553(a).
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F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at 50).
But we have also held that in explaining a sentencing deci-
sion, a 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). "[A] major departure [from the Guide-
lines] should be supported by a more significant justification
than a minor one," Gall, 552 U.S. at 50, but an individualized
explanation must accompany every sentence. See United
States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009); Carter,
564 F.3d at 330.
Although to date neither this court nor the Supreme Court
has issued an express holding as to the standard of review of
properly preserved objections to the sort of procedural sen-
tencing errors at issue here, the Court has generally stated that
we "must review all sentences . . . under a deferential abuse-
of-discretion standard." Gall, 552 U.S. at 40. Moreover, when
considering another sort of procedural sentencing error, the
Court recently observed that "procedural errors at sentencing
. . . are routinely subject to harmlessness review." Puckett v.
United States, 129 S. Ct. 1423, 1432 (2009). We have simi-
larly remarked in the context of another procedural sentencing
error that, when an appellant properly preserved such error,
"we are obliged to apply the ‘harmless error’ standard pro-
vided by Federal Rule of Criminal Procedure 52(a)." United
States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006); see
Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or
variance that does not affect substantial rights must be disre-
garded."). Accordingly, we conclude that if a party repeats on
appeal a claim of procedural sentencing error like those at
issue here, which it has made before the district court, we
review for abuse of discretion. If we find such abuse, we
reverse unless we conclude that the error was harmless.
This does not, however, resolve the question of what stan-
dard of appellate review applies to such claims of procedural
sentencing error made for the first time on appeal.
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II.
Although we have not yet directly addressed this question,
we believe the answer is clear. Federal Rule of Criminal Pro-
cedure 52(b), as well as recent cases from the Supreme Court
and our court dictate the proper standard of review generally
applicable to unpreserved procedural sentencing errors. This
authority requires that in the context at hand, as in most oth-
ers, when a party does not preserve an argument in the district
court, we review only for plain error.
Rule 52(b) provides that, in the absence of proper preserva-
tion, plain-error review applies. See Fed. R. Crim. P. 52(b).
To establish plain error, the appealing party must show that
an error (1) was made, (2) is plain (i.e., clear or obvious), and
(3) affects substantial rights. United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009). Even if an appellant
makes this three-part showing, an appellate court may exer-
cise its discretion to correct the error only if it "seriously
affects the fairness, integrity or public reputation of judicial
proceedings." Id. at 343 (internal quotation marks omitted).
Absent structural error (and no party contends that the
errors at issue here are structural), the Supreme Court has
generally held that appellate courts can review unpreserved
claims only for plain error. United States v. Olano, 507 U.S.
725, 731 (1993). Moreover, just this term, when considering
another sort of sentencing error, the Supreme Court expressly
held that "[i]f an error is not properly preserved, appellate-
court authority to remedy the error . . . is strictly circum-
scribed" to plain-error review. Puckett, 129 S. Ct. at 1428.
The Court explained that applying plain-error review in the
sentencing context "serves worthy purposes," id. at 1433,
including "induc[ing] the timely raising of claims and objec-
tions," id. at 1428. In Booker itself, the Court instructed that
in reviewing sentences, courts should "apply ordinary pruden-
tial doctrines, determining, for example, whether the issue
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was raised below and whether it fails the ‘plain-error’ test."
543 U.S. at 268.
Like the Supreme Court, we too have indicated that the rig-
orous plain-error standard applies to unpreserved claims of
procedural sentencing error. See United States v. Sosa-
Carabantes, 561 F.3d 256, 259 n.6 (4th Cir. 2009) (noting
plain-error review would apply to objection to application of
Guidelines enhancement if not made before the district court,
but finding objection preserved); United States v. Clark, 434
F.3d 684, 686 n.1 (4th Cir. 2006) (noting plain-error review
would apply to objection to district court’s failure to consider
§ 3553 sentencing factor if not made before the district court,
but finding objection preserved).
Our sister circuits have generally agreed with this conclu-
sion. See, e.g., United States v. Pakala, 568 F.3d 47, 56 (1st
Cir. 2009); United States v. Waknine, 543 F.3d 546, 554 (9th
Cir. 2008); United States v. Sevilla, 541 F.3d 226, 230-31 (3d
Cir. 2008); United States v. Gray, 533 F.3d 942, 945 (8th Cir.
2008); In re Sealed Case, 527 F.3d 188, 191-92 (D.C. Cir.
2008); United States v. Vonner, 516 F.3d 382, 385 (6th Cir.
2008) (en banc); United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007); United States v. Villafuerte, 502 F.3d 204,
211 (2d Cir. 2007); United States v. Romero, 491 F.3d 1173,
1177-78 (10th Cir. 2007). In accord with all of this authority,
we now hold, as the Government contends, that plain-error
review applies when a party lodges an objection to the sort of
procedural sentencing error at issue here for the first time on
appeal.
The question remains as to how a party may preserve such
a claim of procedural sentencing error in the district court.
The Government seems to contend that to avert plain-error
review, a party must object to a perceived error after the dis-
trict court has rejected the party’s arguments. But the Federal
Rules of Criminal Procedure reject this formulaic approach.
Instead, the Rules expressly provide that "[a] party may pre-
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serve a claim of error by informing the court—when the court
ruling or order is made or sought—of the action the party
wishes the court to take, or the party’s objection to the court’s
action and the grounds for that objection." Fed. R. Crim. P.
51(b) (emphases added). Thus, the Rules abandon the require-
ment of formulaic "exceptions"—after the fact—to court rul-
ings. As Judge Easterbrook has explained, Rule 51 does "not
require a litigant to complain about a judicial choice after it
has been made." United States v. Bartlett, 567 F.3d 901, 910
(7th Cir. 2009).
The Federal Rules of Criminal Procedure, which the
Supreme Court has expressly approved, represent the consid-
ered view after extensive study of skilled judges and lawyers.
We see good reason to adopt the approach to preservation set
forth in those Rules, and no reason to reject it. This is particu-
larly so given that we have followed precisely this approach
in other sentencing cases. See Sosa-Carabantes, 561 F.3d at
259 n.6 (holding that appellant preserved its objection to the
district court’s application of a sentencing enhancement by
arguing before the district court’s ruling that the enhancement
should not apply); Clark, 434 F.3d at 686 n.1 (holding that the
Government preserved the argument that the district court
failed to consider a relevant § 3553 factor even though the
Government had not objected after the district court’s expla-
nation and had not specifically asked the court to consider that
factor, reasoning that the Government’s "objection [to the
defendant’s motion for a downward departure] in its supple-
mental brief [before the district court] . . . was sufficient to
preserve its claim for appellate review"); see also Bartlett,
567 F.3d at 910 (holding in the context of an asserted proce-
dural sentencing error by the district court that the defendant’s
"sentence was the subject of extensive argument and evi-
dence; his lawyer did not need to argue with the judge once
the sentence had been pronounced").
The Government’s litigation position in recent cases signals
its own discomfort with the preservation requirement it now
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advances. In three recent cases — Carter; United States v.
Engle, ___ F.3d ___ (4th Cir. 2010), available at 2010 WL
114944; and United States v. Wilkinson, ___ F.3d ___ (4th
Cir. 2010), available at 2010 WL 9946 — in which the Gov-
ernment appealed the inadequacy of the district court’s expla-
nation and consideration of § 3553 factors, the Government
argued for abuse-of-discretion review even though it did not
ask specifically for a better explanation of the sentence after
it had been rendered.2 The Government’s newly minted
approach, therefore, runs counter not only to the Rules but
also to its previously consistent position on the matter: that is,
"when an issue is argued before the judicial ruling, counsel
need not take exception once the court’s decision has been
announced." Bartlett, 567 F.3d at 910.
By drawing arguments from § 3553 for a sentence different
than the one ultimately imposed, an aggrieved party suffi-
ciently alerts the district court of its responsibility to render an
individualized explanation addressing those arguments, and
thus preserves its claim. Requiring a party to lodge an explicit
objection after the district court explanation would "saddle
busy district courts with the burden of sitting through an
objection—probably formulaic—in every criminal case."
United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th
Cir. 2005).3 When the sentencing court has already "heard
2Similarly, in each of these consolidated cases, the Government initially
argued for abuse-of-discretion review. The Government changed its posi-
tion — to plain-error review and requiring preservation of error by objec-
tion to the sentence after imposition—only after we asked for additional
briefing on the issue.
3We are also concerned that such a requirement could degenerate into
a never-ending stream of objections after each sentencing explanation.
Although the Government in one of the consolidated cases has assured us
in a supplemental letter that "only one objection . . . is necessary to pre-
serve the matter," we do not see how this limitation can be enforced or
how it accords with an objection requirement intended to force a district
court to remedy its errors contemporaneously. We today opt for an
approach that gives courts this opportunity while limiting the drain on
district-court time.
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argument and allocution from the parties and weighed the rel-
evant § 3553(a) factors before pronouncing sentence," id., we
see no benefit in requiring the defendant to protest further.
See United States v. Grier, 475 F.3d 556, 571 n.11 (3d Cir.
2007) (en banc) ("An objection to [an inadequate explanation]
will be preserved if, during sentencing proceedings, the defen-
dant properly raised a meritorious factual or legal issue relat-
ing to one or more of the factors enumerated in 18 U.S.C.
§ 3553(a).").4
With these principles in mind, we turn to the cases at hand.
III.
In each case, we must first determine if the appellant
lodged his objection to the adequacy of the district court’s
sentencing procedure for the first time on appeal. If so, we
can review only pursuant to the rigorous plain-error standard.
If, however, the appellant preserved his appellate objection by
articulating it first in the district court, we review for abuse of
discretion—reversing if we find error unless we can conclude
that it was harmless.
4In one of these consolidated cases, the Government fleetingly relies on
an evidence rule to contend that a party’s objection to a sentence must also
be "specific." Cf. Fed. R. Evid. 103(a)(1). Even if this Rule governed
objections to a sentencing ruling (and it does not), it only imposes a partic-
ular specificity requirement "if the specific ground" for an objection "was
not apparent from the context." Id. A party’s invocation of and argument
as to § 3553 in the context of recent controlling Supreme Court and Fourth
Circuit precedent certainly render the party’s specific objections "appar-
ent" to the sentencing court. Once that is done, no further objection is nec-
essary to preserve the argument. Although unacknowledged by the
Government, Rule 103(a) itself expressly provides that "[o]nce the court
makes a definitive ruling on the record[,] . . . a party need not renew an
objection . . . to preserve a claim of error for appeal." Id. 103(a). Of
course, lodging one specific claim of procedural sentencing error before
the district court, e.g., relying on certain § 3553 factors, does not preserve
for appeal a different claim of procedural sentencing error, e.g., relying on
different § 3553 factors.
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A.
The sentencing challenge raised in No. 08-5132 arises from
the police discovery of Avery Peake with a gun and $500 on
his person, in a car containing crack cocaine. Peake pleaded
guilty to possession of a firearm by a convicted felon, in vio-
lation of 18 U.S.C. § 922(g)(1) (2006).
1.
Peake’s presentence report ("PSR") calculated a Guidelines
range of 84 to 105 months in prison, but in response to an
unopposed objection by Peake at sentencing, the district court
adjusted the range to 57 to 71 months. The court asked Peake
if he had any further objections to the sentence proposed in
the PSR. When Peake replied that he did not, the court
adopted the PSR with the adjusted range.
The court then indicated that it would "hear from" Peake’s
counsel. Defense counsel stated that he believed that the "Pre-
sentence Report fairly sets out the circumstances of [Peake’s]
life and this offense," and added only that he "would point
out" that Peake’s prior convictions occurred mostly "when he
was very young," and that "the arrests he’s had since then are
essentially alcohol related, which goes . . . to substance
abuse" problems. The district court asked Peake if he wanted
to add anything before imposition of sentence. When Peake
declined to do so, the court imposed a prison sentence of 57
months, at the very bottom of the Guidelines range, explain-
ing that it had "considered the guidelines as advisory only"
and "believe[d] the factors of [§ 3553(a)] are accomplished
with a guideline sentence."
2.
Peake failed to preserve his objection in the district court
to that court’s consideration of the § 3553 factors and expla-
nation for the sentence imposed. His attorney did not argue
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for a sentence different than the within-Guidelines sentence
Peake ultimately received. Rather, in the context of a within-
Guidelines sentence, he merely "point[ed] out" Peake’s con-
duct since adulthood and substance abuse problems. He did
not ask the court to depart from the correctly calculated
Guidelines range based on consideration of the relevant
§ 3553 factors. Defense counsel therefore lodged no objection
to the adequacy of the district court’s explanation. Conse-
quently, we review Peake’s claim for plain error.
To establish plain error, Peake must demonstrate that the
explanation in this case constituted plain error affecting sub-
stantial rights. See Massenburg, 564 F.3d at 343. In other
words, even if we assume that the district court’s very brief
explanation constituted clear error, Rule 52(b) requires that
Peake also show that this explanation had a prejudicial effect
on the sentence imposed. See Puckett, 129 S. Ct. at 1433 n.4.5
Peake has not made such a showing. His attorney’s arguments
before the district court urged that court only to impose a sen-
tence within the Guidelines range, which it did. Accordingly,
we must affirm.
B.
No. 09-4341 grows out of Jeremy Vashon Tucker’s plea of
guilty to possessing a firearm as a convicted felon. The con-
viction arose out of an incident three years before, in which
Tucker accidentally shot himself in the leg.
5We note that in this context some courts have eliminated the need for
an appellant to demonstrate that an error affected his substantial rights. See
Sealed Case, 527 F.3d at 192 ("The absence of a statement of reasons is
prejudicial in itself because it precludes appellate review of the substantive
reasonableness of the sentence."); United States v. Hirliman, 503 F.3d
212, 215 (2d Cir. 2007). We decline to follow this approach. Rather, we
take to heart the Supreme Court’s more recent admonition that such "un-
justified exception[s]" to Rule 52(b) would undercut the "worthy pur-
poses" of plain-error review. Puckett, 129 S. Ct. at 1429, 1433.
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1.
The PSR in Tucker’s case calculated a total offense level
of 30, a criminal history category of VI, and thus a Guidelines
range of 168 to 210 months in prison. However, the PSR rec-
ommended a sentence of 120 months, consistent with the
maximum statutory penalty for Tucker’s offense. See 18
U.S.C. § 924(a)(2) (2006).
At sentencing, the district court granted Tucker’s unop-
posed motion to remove the PSR’s armed career criminal des-
ignation under United States Sentencing Guidelines Manual
("U.S.S.G.") § 4B1.4 (2008). This resulted in the lowering of
Tucker’s offense level, and placement of him in a Guidelines
range of 51 to 63 months. However, the court informed
Tucker that it was considering departing upward from this
Guidelines range under U.S.S.G. § 4A1.3 (2008) because
Tucker’s criminal history category did not adequately reflect
the seriousness of his criminal history. The district judge
noted Tucker’s "very extensive criminal history," and recalled
that he had sentenced Tucker in state court
back in ’99 to a prison term and something is just not
taking. I don’t know what it is, but I feel like . . . 51
to 63 months does not . . . afford adequate deterrence
and protection of the public from further crimes.
And I also take into consideration the seriousness of
the offense, as well as the nature and characteristics
of the defendant to include such an extensive crimi-
nal record. Therefore, it’s my intention to vary up 7
levels . . . [to] a range of 100 to 125 months.
In arguing against this departure, Tucker’s counsel focused
on the unusual circumstances surrounding Tucker’s case. The
charged offense took place three years earlier, when Tucker
arrived at a hospital after accidentally shooting himself.
Defense counsel pointed out that although Tucker admittedly
had possessed a gun, he had not been "out there using the gun
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committing another crime sticking up people or something
like that," but rather had been otherwise law abiding both at
the time he accidentally shot himself and during the entire
three-year period following the injury. Tucker himself pointed
to the unexplained three-year delay between the issuance and
execution of the arrest warrant in this case, and noted that dur-
ing that period, he had never "flunk[ed] a drug test or [done]
any stuff that would cause [him] to get in trouble." Tucker
asked to be "give[n] another chance to go back and do what
I was doing before I came here."
Without in any way addressing these arguments, the district
court imposed a sentence nearly twice as long as the low end
of the advisory Guidelines range. The court provided the fol-
lowing bare explanation of its sentence: "Having calculated
and considered the advisory sentencing guidelines and . . . the
relevant statutory sentencing factors contained in [§] 3553(a),
it’s the judgment of the court that . . . Tucker . . . be impris-
oned for a term of 101 months."
2.
The record makes clear that Tucker preserved his objection
to the district court’s explanation of the sentence. Defense
counsel asked the district court to consider a sentence "either
at the bottom end of the advisory range or perhaps even a
lower sentence that that." He drew from § 3553(a)(1) and
(a)(2)(A) to argue that an out-of-Guidelines sentence, which
the court ultimately imposed, was inconsistent with Tucker’s
recent criminal history and unusual crime of conviction.
Tucker’s § 3553 arguments in the district court for a different
sentence than the one he received preserved his claim of pro-
cedural sentencing error on appeal. Therefore, we review the
district court’s sentencing procedure for abuse of discretion,
and must reverse if we find error, unless we can conclude that
the error was harmless.
That the district court committed significant procedural
error in sentencing Tucker seems clear. The court provided no
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individualized explanation for its substantial departure from
the Guidelines. The court did not, as the Supreme Court
requires, address Tucker’s "nonfrivolous reasons for imposing
a different sentence," Rita, 551 U.S. at 357, particularly his
contention that the nature and circumstances of his current
crime and criminal history did not warrant an above-
Guidelines sentence. See id. (holding that a district court
imposing a within-Guidelines sentence need not provide a
lengthy explanation "[u]nless a party contests the Guidelines
sentence generally under § 3553(a) . . . or argues for a depar-
ture" under the Sentencing Guidelines). The court explained
Tucker’s sentence only by stating that it remembered sentenc-
ing Tucker in the past and "d[id]n’t know" why a within-
Guidelines sentence was inadequate under § 3553. The
Supreme Court has repeatedly held that when a sentencing
judge "decides that an outside-Guidelines sentence is war-
ranted, he must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to sup-
port the degree of the variance." Gall, 552 U.S. at 50; Rita,
551 U.S. at 357.
No such consideration or compelling explanation supports
the court’s sixty-percent departure from the high end of the
Guidelines range. In order to satisfy the explanation require-
ment, the district court might have discussed why, in light of
Tucker’s criminal history, the unusual crime of conviction
was irrelevant or did not support a sentence lower than the
one imposed. Alternatively, the court might have credited
Tucker’s arguments, but concluded that other considerations
drawn from §§ 3553 or 4A1.3 supported imposition of a lon-
ger sentence than the one the Guidelines proposed. By provid-
ing no explanation at all for a substantially above-Guidelines
sentence, the court committed procedural sentencing error.
We cannot conclude that this error was harmless. When
faced with an unexplained out-of-Guidelines sentence, we
have in the past remanded for resentencing because we could
not determine "why the district court deemed the sentence it
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imposed appropriate." Carter, 564 F.3d at 330; see also
Engle, 2010 WL 114944, at *7; Wilkinson, 2010 WL 9946, at
*8-9. We see no reason to abandon this approach today. The
district court’s explicit consideration of Tucker’s arguments
for a lower sentence might have convinced the court to
impose such a sentence. In any event, the district court’s fail-
ure to address Tucker’s arguments and justify a significantly
out-of-Guidelines sentence has produced a "record insuffi-
cient to permit even . . . routine review" for substantive rea-
sonableness. Engle, 2010 WL 114944, at *6.
Accordingly, we vacate Tucker’s sentence and remand for
resentencing.6
C.
The final consolidated case, Nos. 08-5125 and 08-5126,
arises from a trooper’s stop of Mark Lynn and Tavarras
Rhodes as they traveled southbound through Virginia on I-95,
a known drug thoroughfare. The trooper observed their rental
sedan commit several evasive traffic violations, and pulled it
over. As the trooper approached the stopped car, he smelled
the odor of marijuana in the passenger compartment; he then
noticed the nervousness of Lynn and Rhodes and received
inconsistent stories from them as to the purpose of their trip.
A warrantless, simultaneous search of the sedan’s passenger
6Tucker raises a second, equally meritorious, ground for reversal. As in
United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007), the district
court here failed to depart incrementally upward from criminal history cat-
egory VI, as required by U.S.S.G. § 4A1.3(a)(4)(B) (2008). In Dalton, we
held that, "even where an upward departure from [category] VI is plainly
warranted, a sentencing court must depart incrementally, explaining the
reasons for its departure." Id. While the court need not move just one
offense level or move mechanistically through the levels, it must provide
some explanation for the magnitude of its departure. Id. Even the Govern-
ment appears to concede that in this case "‘a more rigorous sentencing
analysis’" was required. See Gov’t Br. 13 (quoting Dalton, 477 F.3d at
200).
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compartment and trunk followed, which revealed "well over
a hundred" empty glassine baggies in the back seat of the car;
a half-smoked marijuana cigarette on the driver’s side floor;
an "overwhelming . . . chemical odor" in the passenger com-
partment, emanating from the trunk; and a plastic bag contain-
ing more than 100 grams of heroin in the trunk.
A grand jury indicted Lynn and Rhodes of (1) possessing
with intent to distribute and (2) conspiring to distribute over
100 grams of heroin, in violation of 21 U.S.C. §§ 841(a), 846
(2006). The district court denied their motion to suppress the
heroin and their subsequent incriminating statements.7 After a
joint trial, a jury convicted the men of both crimes.
1.
Lynn (but not Rhodes) challenges his sentence. Lynn’s
PSR, which the district court adopted, classified him as a
career offender under U.S.S.G. § 4B1.1 (2008) and calculated
a Guidelines range of 360 months to life in prison. Before the
district court, Lynn maintained that he should be awarded a
downward variance from the Guidelines pursuant to the
7Both Lynn and Rhodes challenge the district court’s denial of their
motion to suppress, arguing that the police lacked probable cause to con-
duct a search of the trunk. The Government contends that even if probable
cause did not provide a basis for searching the trunk, the inevitable discov-
ery doctrine does. We agree. The smell of marijuana in the passenger com-
partment of the car furnished police with probable cause to search that
compartment. See United States v. Carter, 300 F.3d 415, 422 (4th Cir.
2002). The search revealed more than one hundred empty baggies in the
back seat, a half-smoked marijuana cigarette on the driver’s side floor, and
a strong chemical odor emanating from the trunk; clearly, this evidence
would have given the officers probable cause to arrest Lynn and Rhodes
and perform an inventory search of the vehicle. See United States v. Mat-
thews, ___ F.3d ___, ___ (4th Cir. 2009), available at 2009 WL 5173719,
at *2. That search would inevitably have led the officers to discover the
heroin in the trunk. Because we uphold the denial of the suppression
motion on this ground, we need not reach the question of whether the
police had probable cause to search the trunk.
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§ 3553 sentencing factors. He contended that he fell "at the
very margins of career offender status" because "the greatest
sentence that he ha[d] served prior to the imposition of this
sentence [wa]s two and a half years." He protested that the
evidence demonstrated that he was not a "drug kingpin" but
only a "courier" "for the benefit of another." He maintained
that the evidence showed that he had been paid just $1000 for
the charged crime. He also asserted that a lengthy sentence
would not achieve "specific deterrence" or "protect[ion of] the
public," and that to impose a within-Guidelines career-
offender sentence on him would create unwarranted sentenc-
ing disparities, given the substantial difference between state
sentences and career-offender federal sentences.
Without addressing any of Lynn’s § 3553 arguments, the
district court sentenced Lynn to a within-Guidelines career-
offender sentence of 33 years. The court offered scant expla-
nation, stating only that the sentence was "fair and appropriate
and . . . consistent with the requirements of [§ 3553(a)]."
After imposing its sentence and immediately prior to recess-
ing, the district judge commented that he hoped that this was
Lynn’s last crime, that he "never imposed a sentence on any-
one . . . other than in the public’s best interest," that Lynn had
a long criminal history, and that "they finally caught up with
[him]."
2.
Lynn preserved his objection to the sentence. In his brief to
the district court, and again at sentencing, Lynn’s attorney
invoked § 3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C), and
(a)(6) to argue that "[a] sentence [of] 30 years[, the bottom
end of the Guidelines range for a career offender,] is just
unreasonable and unfair under the circumstances." Lynn
maintained that he acted only "as a courier, transporting a rel-
atively small amount of heroin, and should not be sentenced
as a multiple offender drug kingpin to thirty years of incarcer-
ation." Rather, he argued, ten years, the high end of the non-
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career-offender Guidelines, was "more than sufficient — but
not greater than necessary — as punishment." Lynn pointed
out that his career-offender status rested on 10- to 18-year-old
convictions, which resulted in less than three combined years
of incarceration. Because Lynn preserved his sentencing chal-
lenge, we review for abuse of discretion.
In explaining the 33-year sentence, the district court barely
referred to Lynn or his case. In fact, beyond finding the sen-
tence "fair and appropriate and . . . consistent with the
requirements of [§ 3553(a)]," the court observed merely—as
a parting comment at the end of the hearing—that Lynn "had
almost an uninterrupted 26 years of committing what crime
[he] thought [he] could get by with, and [the authorities]
finally caught up with [him]." This "explanation" was inade-
quate because it failed to address Lynn’s specific § 3553 argu-
ments or explain why the sentence imposed on him was
warranted in light of them.
We, of course, recognize that in Rita the Supreme Court
explained that "when a judge decides simply to apply the
Guidelines to a particular case, doing so will not necessarily
require lengthy explanation," and that an appellate court can
presume that a within-Guidelines sentence is reasonable. 551
U.S. at 347, 356. But the Rita Court also expressly held that
a district court cannot presume that a within-Guidelines sen-
tence is reasonable. Id. at 351. Moreover, less than a year
after issuance of Rita, the Court further explained that
although "all sentencing proceedings" should begin with "cor-
rect[ ] calculat[ion]" of the "applicable Guidelines range,"
sentencing judges should treat the Guidelines only as "the
starting point." Gall, 552 U.S. at 49. "After settling on the
appropriate sentence," a district court "must adequately
explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing." Id.
As the Gall Court said, and we have reiterated, a district
court’s explanation of its sentence need not be lengthy, but
the court must offer some "individualized assessment" justify-
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ing the sentence imposed and rejection of arguments for a
higher or lower sentence based on § 3553. Gall, 552 U.S. at
50; Carter, 564 F.3d at 330. The district court failed to do that
here. Thus, Lynn’s sentence stands in stark contrast to that in
Johnson, in which we found adequate an explanation that,
although somewhat brief, "outlined the defendant’s particular
history and characteristics not merely in passing or after the
fact, but as part of its analysis of the statutory factors and in
response to defense counsel’s arguments for a downward
departure." 587 F.3d at 639.
Nor, unlike in Rita, does the record of Lynn’s sentencing
hearing "make[ ] clear that the sentencing judge considered
the [defendant’s] evidence and arguments" in fashioning its
sentence. 551 U.S. at 359. In Rita, the appellate court could
look to the district court’s lengthy discussion with, and ques-
tioning of, defense counsel and determine that the district
court understood the defendant’s arguments for a reduced sen-
tence and had reasons for rejecting those arguments. See id.
at 344-45, 358-59. No such discussion or questioning
occurred here. Indeed, the only time the district court even
acknowledged the defendant’s arguments was after it had
imposed sentence; even then, it did so obliquely.
Simply put, because there is no indication that the district
court considered the defendant’s nonfrivolous arguments prior
to sentencing him, we must find error. Here as in Carter,
where the inadequacy of the explanation required us to
remand for resentencing, "the district court could have made
precisely the same statements in support of" a different sen-
tence. 564 F.3d at 329. In sum, the district court erred and so
abused its discretion by ignoring Lynn’s nonfrivolous argu-
ments for a different sentence and failing to explain the sen-
tencing choice.
Whether this error requires reversal presents a close ques-
tion. As is often the case in such situations, our resolution
depends on which party bears the burden of persuasion. To
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avoid reversal for non-constitutional, non-structural errors
like this, the party defending the ruling below (here, the Gov-
ernment) 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. United States v. Curbelo,
343 F.3d 273, 278 (4th Cir. 2003) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)); see also United
States v. Henson, 550 F.3d 739, 741 (8th Cir. 2008). The
Government has failed to carry that burden in this case.
Indeed, the Government does not even contend that any error
was harmless. Given the strength of Lynn’s arguments for a
different sentence, we cannot say with any "fair assurance,"
Kotteakos, 328 U.S. at 765, that the district court’s explicit
consideration of those arguments would not have affected the
sentence imposed. Accordingly, we must vacate and remand
for resentencing. Id. at 776. We note that in a recent case in
which the extent of harm caused by a procedural sentencing
error was not immediately clear, the Supreme Court did pre-
cisely this. See Nelson v. United States, 129 S. Ct. 890 (2009).
We follow suit here.
Because sentencing in this case took place shortly after
issuance of Gall and before issuance of Carter, the district
court did not have the benefit of their discussion of the law
in this area. See Spears v. United States, 129 S. Ct. 840, 846
(2009) (Roberts, C.J., dissenting) (observing that recent
Supreme Court sentencing decisions "have given the lower
courts a good deal to digest over a relatively short period").
We are confident that, in the future, district courts will fulfill
their responsibilities under Gall and Carter to deliver "indi-
vidualized explanations" for the sentences they impose.
IV.
For the above reasons, we direct entry of the following
orders:
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No. 08-5125 VACATED AND REMANDED
No. 08-5126 AFFIRMED
No. 08-5132 AFFIRMED
No. 09-4341 VACATED AND REMANDED
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