                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4897


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

MATTHEW JAMES DURY,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00016-LHT-1)


Submitted:    June 11, 2009                 Decided:   July 10, 2009


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Carol Ann Bauer, Morganton, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Matthew James Dury pled guilty to receipt of child

pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1)

(2006).          In sentencing Dury, the district court determined that

he had engaged in a pattern of activity involving the sexual

abuse       or    exploitation       of   a    minor     and    consequently       enhanced

Dury’s offense level five levels pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 2G2.2(b)(5) (2007).                            The district

court then sentenced Dury to 204 months’ imprisonment, which

fell within his advisory guidelines range.                         On appeal, counsel

for Dury has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), suggesting that the district court erred in

applying the USSG § 2G2.2(b)(5) enhancement. ∗

                  This   court      reviews    sentencing       enhancements       under    a

mixed standard of review: findings of fact are subject to a

clearly          erroneous    standard        and     legal    conclusions,       including

interpretation           of   the    sentencing       guidelines,     are    reviewed      de

novo.       United States v. Moreland, 437 F.3d 424, 433 (4th Cir.

2006).       The Government need only establish the facts supporting

a   sentencing           enhancement          under     USSG    § 2G2.2(b)(5)        by    a




        ∗
        Dury was informed of his right                           to   file    a    pro     se
supplemental brief. He has not done so.



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preponderance         of       the    evidence.             United       States        v.     Kiulin,

360 F.3d 456, 460 (4th Cir. 2004).

              Section          2G2.2(b)(5)            provides         for      a     five     level

enhancement     if     a       defendant     engaged        in     a    pattern       of     activity

involving the sexual abuse or exploitation of a minor.                                             USSG

§ 2G2.2(b)(5).             A    “pattern     of       activity         involving       the     sexual

abuse or exploitation of a minor” is defined as “any combination

of two or more separate instances of the sexual abuse or sexual

exploitation of a minor by the defendant, whether or not the

abuse    or   exploitation           (A)    occurred        during       the        course    of   the

offense;      (B)    involved         the   same       minor;      or    (C)    resulted        in   a

conviction      for     such         conduct.”          USSG       § 2G2.2(b)(5)             comment.

(n.1).

              Dury first suggests that the district court erred in

enhancing      his    sentence         based   on       a   statement        he      gave     to   law

enforcement because his statement lacks reliability.                                         We have

reviewed      the    record       and   determine           that       Dury’s       statement      was

sufficiently reliable that the district court did not err in

relying on it in imposing the § 2G2.2(b)(5) enhancement.

              Dury next suggests that the district court erred in

enhancing his sentence pursuant to USSG § 2G2.2(b)(5) based on a

state conviction for simple assault.                           The charging document in

that case stated that Dury held a thirteen-year-old child on a

couch and attempted to kiss her.                       Accordingly, we find no error

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in the application of the enhancement.                   See Shepard v. United

States, 544 U.S. 13, 26 (2005).

            In accordance with Anders, we have thoroughly reviewed

the record and find no infirmity that calls Dury’s conviction

into question.        We conclude, however, that Dury’s sentence must

be vacated as the district court’s explanation of its exercise

of discretionary sentencing authority does not pass muster under

United States v. Carter, 564 F.3d 325 (4th Cir. 2009).

            This court reviews a sentence imposed by a district

court under a deferential abuse of discretion standard.                     Gall v.

United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007);

United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).                         In

reviewing a sentence, the appellate court must first ensure that

the district court committed no significant procedural error,

such as failing to adequately explain the chosen sentence.                       Gall

 128 S. Ct. at 597.          If there are no procedural errors, then the

appellate court considers the substantive reasonableness of the

sentence.   Id.

            “When rendering a sentence, the district court must

make an individualized assessment based on the facts presented.”

Carter,   564   F.3d    at    328   (quoting    Gall,     128   S.    Ct.   at   597)

(internal    quotations       omitted)       (emphasis    in    the    original)).

Accordingly,      a    sentencing     court      must     apply      the    relevant

§ 3553(a) factors to the particular facts presented and must

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“state in open court” the particular reasons that support its

chosen sentence.                 Id.    Stating in open court the particular

reasons for a chosen sentence requires the district court to set

forth enough to satisfy this court that the district court has a

reasoned basis for its decision and has considered the parties’

arguments.         Id.

                  Here, as in Carter, the district court did not justify

Dury’s       sentence       with       an   adequate        individualized          rationale.

Carter,      564     F.3d    at    328-29.        At    sentencing,         defense      counsel

requested the district court to sentence Dury “at the lowest

possible level.”                In support of her request, defense counsel

referenced Dury’s difficult upbringing and life.                               In imposing a

sentence near the middle of Dury’s advisory guidelines range,

the    district          court    stated    only       “pursuant      to     the    Sentencing

Reform Act of 1984 and U.S. v. Booker, it is the judgment of the

Court,       having       considered        the       factors     noted      in     18   U.S.C.

§ 3553(a)         that    the     defendant,      Matthew        James      Dury,   is    hereby

committed to the custody of the U.S. Bureau of Prisons, to be

imprisoned for a term of 204 months.”                       The district court failed

to state how or which particular § 3553(a) factors applied to

Dury,       and    the    court’s      statement       that      it   had    considered      the

§ 3553(a) factors could have applied to any sentence, regardless

of    the    offense       or     defendant.          Id.   at    329.       “Regardless      of

whether       the        district      court      imposes        an   above,        below,    or

                                                  5
within-Guidelines       sentence,   it       must    place   on    the   record   an

‘individualized assessment’ based on the particular facts of the

case before it.”        Id. at 330.      The record here simply fails to

reveal why the district court deemed the sentence it imposed

appropriate.     Accordingly, while we affirm Dury’s conviction, we

vacate Dury’s sentence and remand for resentencing in light of

Carter.

            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.

                                                           AFFIRMED IN PART;
                                                VACATED AND REMANDED IN PART




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