                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5073


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LANCE WALKER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cr-00306-WDQ-1)


Submitted:   November 4, 2010             Decided:   December 2, 2010


Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished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


Michael P. Kushner, Brooklyn, New York, for Appellant. Rod J.
Rosenstein, United States Attorney, Debra L. Dwyer, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Lance Walker was convicted after a jury trial.                              He

appeals his convictions for various drug and firearm charges and

his resulting 480-month sentence.                   We affirm his convictions but

vacate his sentence and remand for resentencing.



                                           I.

              Walker first challenges the December 17, 2007 search

of his car.         He asserts that the warrant lacked probable cause

and that no rational officer could state any basis for issuing

such a search warrant.                 The affidavit supporting the warrant

recounted the investigation into the October 30, 2007 death of

Marion   Beckford,      who      was    shot       while   allegedly     attempting       to

collect a debt from Walker.              Walker was positively identified at

a photographic line-up, and text messages also tied Walker to

the   shooting.          Further,        the       shooter      drove    a      dark   SUV.

Investigation linked Walker to a Black Lincoln Navigator, and he

was arrested in that car.                The officer also averred that the

firearm used in the shooting had not been found and that he

believed Walker carried a weapon in his vehicle for safety.                               On

the   basis    of    this   affidavit,         the    magistrate        judge    issued    a

search warrant for Walker’s Navigator, permitting a search for

evidence      relating      to     the     murder          of   Beckford,        including

“[h]andguns,         ammunitions,          CDS         [controlled           substances],

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photographs, directions, paperwork, personal papers and any and

all microscopic evidence.”

            Walker points out that there was no mention of CDS in

the affidavit and argues that the source of the officer’s belief

that    there    would    be   a     handgun     in   the      car    was    absent.         In

reviewing       the    propriety      of     issuing      a     search      warrant,        the

relevant    inquiry       is       whether,      under        the    totality      of       the

circumstances, the issuing judge had a substantial basis for

concluding that there was probable cause to issue the warrant.

Illinois    v.     Gates,      462    U.S.     213,    238      (1983).          The    facts

presented to the issuing judge need only convince a person of

reasonable caution that contraband or evidence of a crime will

be found at the place to be searched.                     Texas v. Brown, 460 U.S.

730, 742 (1983).          Probable cause is a “flexible, common-sense”

standard.        Id.    “[T]he nexus between the place to be searched

and the items to be seized may be established by the nature of

the item and the normal inferences of where one would likely

keep such evidence.”            United States v. Anderson, 851 F.2d 727,

729 (4th Cir. 1988).

            We conclude that the affidavit provided probable cause

to     believe     that     firearms         would     be      found        in   the        car.

Specifically, the shooter drove a dark colored SUV to the crime

scene    where    he    shot    Beckford,        Walker       was    identified        as   the

shooter who emerged from the SUV, Walker was seen driving a

                                             3
black Lincoln Navigator SUV, and the murder weapon had not been

recovered.           Probable      cause       can   be   inferred      from       the

circumstances, and the warrant was not invalid for failing to

produce direct evidence that a firearm was in Walker’s car.                        See

United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993)

(noting that test is whether it is “reasonable to believe that

the   items     to   be   seized   will     be   found    in    the   place   to    be

searched”).

              The warrant’s permission to search for CDS is more

problematic.         It is undisputed that the warrant’s inclusion of

CDS as an appropriate item to be seized was not supported by

probable cause.           However, absent a showing of pretext or bad

faith    on    the    part   of    the     police    or   the    Government,       the

invalidity of part of a search warrant does not require the

suppression of all the evidence seized during its execution.

See United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir.

1983).        Thus, even if the portion of the warrant permitting

seizure of CDS is invalid, the Fourth Amendment does not require

the suppression of anything described in the valid portions of

the warrant or “lawfully seized []on plain-view grounds, for

example-during their execution.”                 Id. at 637; see also United

States v. George, 975 F.2d 72, 79 (2d Cir. 1992) (holding that,

where warrant as a whole is not invalid, a redacted warrant may



                                           4
justify a police intrusion, permitting admission of items found

in plain view).

              Here, the cocaine and marijuana were found hidden in

the    same   place   as    a   loaded   pistol,      in   an      area     around   the

vehicle’s sunroof.          The heroin was found inside the driver’s

door.    Thus, had the warrant not included CDS as an appropriate

target of the search, the drugs would still have been found in

plain view during the execution of the warrant to search for

firearms.      Walker does not argue that the error in the search

warrant was the result of bad faith or pretext.                           Moreover, he

does not contend that a proper search for handguns would not

have    uncovered     the   drugs.       Accordingly,         we     find    that    the

district      court   properly    denied       the   motion     to    suppress       with

regard to the search of Walker’s vehicle.



                                         II.

              Walker next contends that the district court failed to

make any factual findings or legal conclusions regarding the

items seized from his car on January 16, 2007.                       However, after

the testimony at the suppression hearing, Walker did not make

any argument regarding the January 16 search.                      Nonetheless, the

court did find that the January stop and seizure were proper.

              In any event, the search of Walker’s car was clearly

proper as a search incident to arrest.                     A police officer may

                                          5
search the passenger area of a vehicle incident to the lawful

arrest of its occupant, even when the occupant has already been

removed from the car and is under the control of the police.

United   States    v.    Milton,    52   F.3d    78,    80   (4th   Cir.   1995).

Moreover,     vehicle    searches    are      permissible    incident      to   the

arrest   of    “recent   occupants”      of   the   vehicle,    accounting      for

situations where the officer does not make contact until the

person arrested has left the vehicle.                  See Thornton v. United

States, 541 U.S. 615, 621-23 (2004); Arizona v. Gant, 129 S. Ct.

1710, 1723 (2009) (“Police may search a vehicle incident to a

recent occupant’s arrest only if the arrestee is within reaching

distance of the passenger compartment at the time of the search

or it is reasonable to believe the vehicle contains evidence of

the offense of arrest.”).

              While Walker was being pursued by police officers, he

exited his car and attempted to run.                   The police apprehended

Walker and recovered the cocaine he had thrown from the car.

The officers then searched the car.                 We find the warrantless

search of Walker’s car was proper incident to Walker’s arrest.



                                      III.

              Walker claims joinder of the counts against him was

not proper because the counts flowing from each of his three

arrests were not related and there was nothing in the indictment

                                         6
tying     the     arrests       with    one      another.               Walker’s      convictions

stemmed      from    three      arrests         in       Baltimore,        Maryland,       in    2007:

January 16, May 22, and December 17.                                Walker further asserts

that    he   was     prejudiced        by   the          joinder     because       the     jury    was

permitted to hear about his involvement with other narcotics

transactions.

              Fed.    R.     Crim.     P.       8(a)       provides        that     two    or     more

offenses may be charged in the same indictment when the offenses

“are of the same or similar character, or are based on the same

act or transaction, or are connected with or constitute parts of

a   common      scheme     or   plan.”           We       review     de     novo    the    district

court’s      refusal       to    grant      a    misjoinder             motion     to     determine

whether the initial joinder of the offenses was proper under

Rule 8(a).          United States v. Mackins, 315 F.3d 399, 412 (4th

Cir. 2003).         If joinder was proper, review of the denial of a

motion to sever is for abuse of discretion under Fed. R. Crim.

P. 14.       Id.      Because of the prospect of duplicating witness

testimony,        impaneling       additional              jurors       or    wasting       limited

judicial        resources,       joinder         is        the      rule     rather       than     the

exception.          United States v. Hawkins, 589 F.3d 694, 700 (4th

Cir.    2009).      Joinder      of    multiple            charges        involving       the     same

statute      is     “unremarkable”.                  Id.       at   702-03       (citing        United

States v.       Acker,     52    F.3d       509,         514     (4th     Cir.     1995)    (courts



                                                     7
routinely allow joinder of bank robbery charges against the same

defendant)).

               We     conclude     that       the     joinder     of    the    counts    was

permissible.          In each arrest, all of which occurred within a

twelve month period, Walker was apprehended with a distributable

amount of drugs in his car, packaged in separate bags.                              In two

of the arrests, Walker was found with ammunition or firearms,

which    are    tools       of   the    drug    trade,      and   tally   sheets,       which

supported the conclusion that Walker sold cocaine and marijuana.

See United States v. White, 875 F.2d 427, 433 (4th Cir. 1989)

(firearms       are    commonly        used    in   drug    business).         After     each

arrest,    Walker       was      charged       with    possession       with    intent    to

distribute CDS, among other charges.                        Accordingly, the arrests

each involved conduct of the same or similar character.                                  See

United States v. Quilling, 261 F.3d 707, 714 (7th Cir. 2001)

(noting    that       joinder     is    proper      where    counts     were    temporally

related and charged under the same statute).

               Since joinder of the counts was proper, Walker must

show    that    he    was    clearly      prejudiced        by    the   district   court’s

denial of his motion to sever.                        See Acker, 52 F.3d at 514.

However,       the    overwhelming       evidence       against     Walker     shows     that

there was no prejudice.                  Officers testified that, after each

arrest, Walker was found in possession of contraband.                            Moreover,

the district court gave a limiting instruction, informing the

                                                8
jury that they must consider each count separately.                   Because

joinder was proper and Walker cannot show clear prejudice, the

district   court   did   not   abuse   its    discretion   in   denying   the

motion to sever the counts.



                                   IV.

           Next,    Walker     asserts       that   the    district    court

improperly denied his motion to continue the trial.              “[A] trial

court’s denial of a continuance is . . . reviewed for abuse of

discretion; even if such an abuse is found, the defendant must

show that the error specifically prejudiced [his] case in order

to prevail.”    United States v. Williams, 445 F.3d 724, 739 (4th

Cir. 2006).

           We find that Walker has failed to show either an abuse

of discretion or prejudice.        First, Walker’s assertion that he

twice moved for a continuance of trial is unsupported by the

record.    On August 8, 2008, the motions deadline, Walker filed a

written motion to continue the motions deadline, not the trial.

Walker did not move to continue the trial until September 10,

five days before trial, and on that date, Walker moved for the

continuance in a untranscribed telephone conference.                  Because

Walker never filed a written motion to continue, the district

court’s reasoning for denial is not on the record.                Given the

timing of Walker’s motions and his failure to ensure that his

                                       9
motion to continue was heard on the record, the district court

did not abuse its discretion in denying the motion.                             Moreover,

even if there were an abuse of discretion, Walker has failed to

even allege prejudice.



                                            V.

              Finally,     Walker         claims     that     his        sentence    was

procedurally unreasonable because the district court failed to

give     sufficiently      individualized          reasoning       for     the    chosen

sentence.      Walker’s advisory Guidelines range was 420 months to

life in prison.          At sentencing, Walker argued for a 420-month

sentence, contending that (1) he had never been convicted of a

crime    of    violence,    (2)     he     had     never    been    convicted       of   a

completed drug sale — all his convictions were for possession

with intent to distribute, (3) he had three small children, (4)

the Government intimidated his witnesses, and (5) he could still

contribute something positive to society.                    The court imposed a

480-month sentence without providing any reasoning.

              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)      (2006),     or     discuss    every     factor       on    the    record,

particularly when the court imposes a sentence within a properly

                                            10
calculated Guidelines range.                United States v. Johnson, 445 F.3d

339, 345 (4th Cir. 2006).              But, at the same time, 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,          even    when       sentencing      a

defendant within the Guidelines range.                       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, 564 F.3d 325, 330 (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       case     at    hand    and   be

adequate to permit appellate review.                     Thus, a recitation of the

§   3553    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.                              Id. 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

                                             11
court’s rationale.          Id. at 329-30.           Because Walker requested a

lower   sentence     than    he   received,     his     claim     is   reviewed     for

harmless error.        See United States v. Boulware, 604 F.3d 832,

838 (4th Cir. 2010).

             Here,    the    court    merely    imposed     a   sentence      without

referencing    the    Guidelines      range,     the     statutory     factors,      or

Walker’s arguments.         Prior to imposing a sentence, the district

court made some comments that illustrated the court’s view of

the case: (1) the court stated that it was going to ignore an

outstanding murder charge in imposing sentence, (2) the court

stated that it did not intend to impose a life sentence, (3) the

court expressed its belief that Walker’s witnesses were lying,

and (4) the court expressed bewilderment at Walker’s counsel’s

attempt to minimize Walker’s culpability based on the fact that

he had never been convicted of actually selling drugs.                              The

court did not address any of Walker’s other arguments.

             This    reasoning,      which     was    culled    from    the    entire

sentencing transcript so that some of the statements were made

prior to hearing full argument, is insufficient as it does not

reflect that the court specifically concluded that a Guidelines

sentence satisfied the statutory sentencing factors.                     See United

States v. Hernandez, 603 F.3d 267, 269 (4th Cir. 2010) (holding

on   plain   error    review      that,   where       defendant    asked      for   the

sentence he received and the court stated only that a Guidelines

                                          12
sentence     was         appropriate,          sentence         was        not     procedurally

unreasonable).           We thus conclude that the district court abused

its discretion by failing to provide individualized reasoning

for the sentence imposed.                Accordingly, Walker’s sentence should

be vacated unless the court finds that the error was harmless.

United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010).

             “To          avoid        reversal            for            non-constitutional,

non-structural 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.”     Id. at 585.              (internal quotation marks omitted.) The

Government       makes         no    argument       that       any     alleged      error       was

harmless,       and      the    record    does       not       conclusively         show       that

“explicit consideration of [Walker’s] arguments would not have

affected the sentence imposed.”                      Id.         Accordingly, we vacate

Walker’s sentence and remand for the district court to address

Walker’s arguments and give sufficient reasoning for its chosen

sentence.

             Based on the foregoing, we affirm Walker’s convictions

and    vacate      his    sentence       and     remand        for     resentencing.             We

dispense     with        oral       argument     because         the       facts    and     legal




                                               13
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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