                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4909


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JIMMY RAY CROFT,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:07-cr-00116-HMH-1)


Submitted:   July 29, 2011                 Decided:   August 11, 2011


Before WILKINSON, MOTZ, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, A. Lance Crick, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Without the benefit of a written plea agreement, Jimmy

Ray Croft pled guilty to using and carrying a firearm during and

in relation to, and possessing a firearm in furtherance of, a

drug     trafficking       offense,         in         violation     of     18     U.S.C.

§ 924(c)(1)(A)       (2006).         Croft       was    sentenced    to     eighty-four

months’     imprisonment,      which        was    a     twenty-four-month         upward

variance from his sixty-month sentencing range.                           See 18 U.S.C.

§ 924(c)(1)(A)(i); U.S. Sentencing Guidelines Manual § 2K2.4(b)

(2009).    Croft timely appealed.

            On appeal, Croft argues the district court committed

procedural error in failing to individually assess his case in

light of the 18 U.S.C. § 3553(a) (2006) sentencing factors and

in    failing   to   provide     a   reasoned          explanation   for    the    upward

variance.       For the reasons that follow, we agree.                     Accordingly,

we     vacate Croft’s sentence and remand this case to the district

court for resentencing.

            In evaluating the sentencing court’s explanation of a

selected    sentence,     we     have      consistently       held    that,       while   a

district court must consider the statutory factors and explain

its    sentence,     it   need       not    explicitly       reference       18    U.S.C.

§ 3553(a) or discuss every factor on the record, particularly

when the court imposes a sentence within a properly calculated

Guidelines range.         United States v. Johnson, 445 F.3d 339, 345

                                             2
(4th Cir. 2006).         At the same time, however, the district court

“must   make     an    individualized      assessment        based   on   the          facts

presented.”          Gall v. United States, 552 U.S. 38, 50 (2007).

Moreover,      the    district     court    must    state     the    individualized

reasons that justify a sentence.                   Rita v. United States, 551

U.S.    338,    356–57    (2007).         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 a factor appropriate for consideration . . . and

[are] clearly tied to [the defendant’s] particular situation.”

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

               In United States v. Carter,              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       case   at    hand    and    be    adequate    to       permit

meaningful appellate review.”              564 F.3d 325, 330 (4th Cir. 2009)

(internal      quotations     omitted).         Thus,   a    recitation      of    the    §

3553(a)    factors      and   purposes     is    insufficient.         Likewise,          a

conclusory statement that a specific sentence is the proper one

does not satisfy the district court’s responsibilities.                                 See

Carter, 564 F.3d at 328–29.             In addition, 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 court’s reasoning.             Id. at 329-30.

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            Here,     the       court       correctly       stated       Croft’s     Guidelines

range 1 and discussed three aspects of Croft’s case germane to the

§ 3553(a)     sentencing         factors:           (1)    that      Croft’s        inconsistent

employment history reflected that he supported himself as a drug

dealer;    (2)     that    it    could        not    identify          any    non-drug-related

purpose     for    carrying           a    loaded      .357      Magnum;       and    (3)       that

contemporaneous       with           his    possession        of       the    firearm,          Croft

possessed 210.87 grams of crack cocaine.                                These matters were

clearly relevant to the nature and circumstances of the offense,

Croft’s     history       and    characteristics,                and    the    need       for    the

sentence    to     reflect       the       seriousness        of       the    offense      and    to

provide     just    punishment             for   the       offense.           See    18     U.S.C.

§ 3553(a)(1),       (a)(2)(A).               However,       in      identifying       the       drug

quantity seized from Croft, the court misstated the facts of the

case, as it is undisputed that Croft possessed 10.87 grams of

crack cocaine, not 210.87 grams. 2

            We first hold the district court’s analysis of the

§ 3553(a)     factors           is        tainted     by      the       court’s       undisputed

misstatement as to the quantity of crack cocaine found on Croft.

     1
        We note that the court granted Croft’s motion for
reconsideration of the sentence imposed at his first sentencing
hearing. At the second sentencing hearing, the court correctly
stated Croft’s advisory Guidelines range.
     2
         The parties agree that this was an error by the district
court.    (See Appellant’s Br. at 9; Appellee’s Br. at 12 n.3).



                                                 4
Removing this erroneously stated fact from the mix, we cannot

conclude that the district court’s explanation for the upward

variance was individualized and reasoned.                          The two other facts

identified        by   the     district      court      —    Croft’s       contemporaneous

possession of a loaded firearm, a quantity of drugs, and several

hundred dollars in cash and lack of regular employment — cannot

be    said   to    distinguish       this    case       from      the    average        § 924(c)

conviction.            Thus,    we     are    constrained           to     accept        Croft’s

contention that the district court’s decision to vary upward was

improperly influenced by its erroneous statement of the quantity

of drugs found on Croft.

             We    therefore      conclude        the    court’s        justification        for

the variance sentence is insufficient as it does not reflect a

reasoned basis for the conclusion that a Guidelines sentence did

not satisfy the statutory sentencing factors.                               See Rita, 551

U.S. at 356 (explaining that the district court must articulate

sufficient justification for its sentencing decision “to satisfy

the   appellate        court    that   [the       district        court]    has     .    .   .   a

reasoned     basis     for     exercising     [its]         own   legal     decisionmaking

authority”); see also United States v. Boulware, 604 F.3d 832,

837 (4th Cir. 2010) (citing Rita for the same).                               Furthermore,

Croft preserved his claim for appellate review by requesting a

sentence below the one he received.                     Accordingly, our review of



                                              5
the issue is for harmless error rather than plain error.                              See

Boulware, 604 F.3d at 838.

             “To    avoid     reversal          for     non-constitutional,          non-

structural    errors     like      [the    one       presented     here],    the   party

defending    the    ruling    below       (here,      the   Government)      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. Lynn, 592 F.3d 572, 585 (4th

Cir. 2010) (internal quotation marks omitted).                        The Government

maintains that any error here was harmless because the court

could have identified several other § 3553(a) factors that would

have supported the variance sentence.                       The Government further

asserts that, given Croft’s lack of education and his substance

abuse     problems,    “[a]     longer      period       of   incarceration        would

provide     Croft     with    more    opportunities           for    educational      or

vocational      training      as     well       as     medical      care    and    other

correctional treatment.”            (Appellee’s Br. at 14).                Finally, the

Government claims that remanding this case to the district court

would   waste      judicial     resources        given      that    the    court   twice

sentenced Croft to eighty-four months in prison.

             Because “the extent of harm caused by [the] procedural

sentencing error [is] not immediately clear,” we cannot conclude

that the error in this case was harmless.                          Lynn, 592 F.3d at

585.    Although the Government aptly identifies facts relevant to

                                            6
other    §   3553(a)   factors   that   the   court    could   have   cited   to

support the upward variance, the court did not state that any of

those facts influenced its sentencing decision.                Thus, we hold

the Government has not satisfied its burden of demonstrating

harmlessness.

             Based on the foregoing, we vacate Croft’s sentence and

remand this case to the district court. 3             We indicate no view as

to the appropriate sentence to be imposed on Croft, leaving that

determination     to   the   district   court.    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




     3
       Because Croft did not challenge his conviction on appeal,
we have not considered any issues relevant to his conviction.



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