                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 16-4028


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EFREN PEREZ-ROBLERO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:15-cr-00216-FL-1)


Submitted:   September 9, 2016             Decided:   October 19, 2016


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


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Jennifer C.
Leisten, Research & Writing Attorney, Raleigh, North Carolina,
for Appellant.      John Stuart Bruce, Acting United States
Attorney, Jennifer P. May-Parker, Barbara D. Kocher, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Efren Perez-Roblero appeals his above-Guidelines sentence

of   18    months’      imprisonment          following      his      plea       of       guilty    to

unlawfully reentering the United States after previously having

been removed, in violation of 8 U.S.C. § 1326(a) (2012).                                       Perez

argues that the district court failed to resolve disputed issues

of fact as required by Fed. R. Crim. P. 32(i)(3)(B) and that his

sentence is both procedurally and substantively unreasonable.

      In       reviewing      an    appellant’s       procedural       challenge             to    his

sentence, we review for plain error if the defendant did not

argue for a sentence different than the one imposed.                                         United

States     v.    Lynn,     592      F.3d    572,    576-77      (4th    Cir.          2010).        To

prevail under this standard, an appellant must establish that a

clear     or     obvious      error    by     the    district      court         affected          his

substantial rights.                United States v. Olano, 507 U.S. 725, 732,

734 (1993).         However, if a party asserts on appeal a claim of

procedural        sentencing         error     that     it      preserved             before       the

district court, we review for an abuse of discretion and will

reverse unless we conclude that the error was harmless.                                        Lynn,

592 F.3d at 576.

      We       review    the       substantive      reasonableness           of       a    sentence

“under     a    deferential         abuse-of-discretion          standard.”                 Gall    v.

United     States,      552    U.S.     38,    41,    51   (2007).           A    “deferential

abuse-of-discretion            standard       applies      to   any    sentence,            whether

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inside, just outside, or significantly outside the Guidelines

range.”     United States v. Rivera-Santana, 668 F.3d 95, 100-01

(4th Cir. 2012) (internal quotation marks omitted).                               Thus, in

reviewing    a     variance,          we    must     give     due   deference      to     the

sentencing court’s decision.                   United States v. Diosdado-Star,

630 F.3d 359, 366 (4th Cir. 2011) (citing Gall, 552 U.S. at 51).

      In   reviewing       a   sentence,        we    must    first     ensure    that    the

district     court       did    not        commit    any     “significant        procedural

error,” such as failing to properly calculate the applicable

Guidelines range, “failing to consider the § 3553(a) factors,

selecting    a     sentence       based       on     clearly     erroneous       facts,   or

failing to adequately explain the chosen sentence.”                              Gall, 552

U.S. at 51.        The district court “must place on the record an

individualized assessment based on the particular facts of the

case before it.”           United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009) (internal quotation marks omitted).

      If we find a sentence procedurally reasonable, we must then

examine its substantive reasonableness, taking into account the

totality of the circumstances.                 Gall, 552 U.S. at 51.             Where, as

here, the district court imposes a sentence that falls outside

the   applicable         Guidelines         range,     we     consider     “whether       the

sentencing       court    acted       reasonably       both      with   respect     to    its

decision    to    impose       such    a    sentence       and   with   respect     to    the

extent of the divergence from the sentencing range.”                                 United

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States     v.    Washington,       743    F.3d     938,    944    (4th     Cir.    2014)

(internal quotation marks omitted).                     The district court “has

flexibility in fashioning a sentence outside of the Guidelines

range,” and need only “set forth enough to satisfy the appellate

court that it has considered the parties’ arguments and has a

reasoned basis” for its decision.                   Diosdado-Star, 630 F.3d at

364   (alterations          and     internal       quotation       marks     omitted).

Nevertheless,          “[t]he     farther    the    court       diverges    from     the

advisory        guideline       range,”     the    more     we     must     “carefully

scrutinize       the    reasoning     offered      by     the    district    court    in

support of the sentence.”                United States v. Hampton, 441 F.3d

284, 288 (4th Cir. 2006) (internal quotation marks omitted).                          We

will affirm if “the § 3553(a) factors, on the whole, justified

the sentence” imposed.            Diosdado-Star, 630 F.3d at 367 (internal

quotation marks omitted).

      We review the sentencing court’s factual findings for clear

error.     United States v. Flores-Alvarado, 779 F.3d 250, 254 (4th

Cir. 2015).        “Accordingly, if the district court makes adequate

findings as to a controverted sentencing matter, this court must

affirm those findings unless they are clearly erroneous.”                            Id.

(alterations and internal quotation marks omitted).                          “However,

the review process cannot take place without the district court

first resolving all the disputed matters upon which it relies at

sentencing.”       Id. at 254-55 (internal quotation marks omitted).

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If the sentencing court failed “to resolve a disputed factual

matter on which it necessarily relied at sentencing, this court

must vacate the sentence and remand for resentencing.”                           United

States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991).

      Rule 32(i)(3)(A) of the Federal Rules of Criminal Procedure

permits a district court to “accept any undisputed portion of

the presentence report as a finding of fact.”                        Fed. R. Crim. P.

32(i)(3)(A).       When a defendant disputes the facts contained in a

presentence report, “[a] mere objection to the finding in the

presentence report is not sufficient.”                    United States v. Terry,

916 F.2d 157, 162 (4th Cir. 1990).                    Instead, “[t]he defendant

has an affirmative duty to make a showing that the information

in   the   presentence         report    is     unreliable,     and    articulate     the

reasons     why        the    facts     contained      therein        are    untrue    or

inaccurate.”       Id.        The burden is on the defendant, and if the

defendant    fails       to    make     “an   affirmative      showing       [that]   the

information       is    inaccurate,       the     court   is    free    to   adopt    the

findings of the presentence report without more specific inquiry

or explanation.”             Id. (alteration and internal quotation marks

omitted); see United States v. Love, 134 F.3d 595, 606 (4th Cir.

1998) (finding that the defendant’s objection to the presentence

report’s    determination         of     drug     quantity     was    insufficient     to

render the district court’s adoption of the presentence report



                                              5
erroneous in the absence of evidence contradicting the report’s

conclusions).

       Pursuant to Rule 32(i)(3)(B), a district court “must — for

any    disputed        portion      of     the       presentence       report    or       other

controverted matter — rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in

sentencing.”       Fed. R. Crim. P. 32(i)(3)(B).                       The rule “clearly

requires the district court to make a finding with respect to

each    objection       a    defendant      raises       to    facts    contained         in   a

presentence report before it may rely on the disputed fact in

sentencing.”            Morgan,      942     F.2d       at    245    (considering          Rule

32(i)(3)(B)’s predecessor, Rule 32(c)(3)(D)).                            The purpose of

the rule “is to ensure that a record is made as to how the

district     court          ruled    on     any       alleged       inaccuracy       in     the

[presentence report].”               United States v. Walker, 29 F.3d 908,

911 (4th Cir. 1994).                Thus, the district court may make the

required     finding         by     “expressly         adopt[ing]       the     recommended

findings contained in the presentence report.”                          Morgan, 942 F.2d

at    245.       The    court       may    adopt      “the     [presentence      report]’s

findings in toto” if “the context of the ruling makes clear that

the district court intended by the adoption to rule on each of

the    alleged    factual         inaccuracies.”             Walker,    29    F.3d    at    911

(brackets and internal quotation marks omitted).

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     We have reviewed the parties’ briefs and the record in this

matter and conclude that the district court’s imposition of an

18-month variant sentence was erroneous and unreasonable.                  See

United States v. Atencio, 476 F.3d 1099, 1107 (10th Cir. 2007)

(finding that the district court plainly erred in imposing a

variant sentence following its adoption of a presentence report

containing     contradictory   facts),    overruled      in   part   on   other

grounds   by   Irizarry   v.   United    States,   553    U.S.   708   (2008).

Accordingly, we vacate Perez-Roblero’s sentence and remand for

further proceedings in accordance with Fed. R. Crim. P. 32(i)

and Gall.

                                                      VACATED AND REMANDED




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