                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4443



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


KENDRICK BAHAM,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (2:06-cr-00001-F)


Submitted:   January 4, 2007                 Decided:   January 30, 2007


Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Kendrick Baham appeals his sentence of 60 months’ imprisonment

for   escaping   from   an   institutional   facility   in   which   he   was

lawfully confined for a felony conviction, in violation of 18

U.S.C.A. § 751(a) (West 2000 & Supp. 2006).         Baham contends that

the district court imposed an unreasonable sentence when it varied

upwardly from the advisory guidelines range.       Because the district

court did not follow the required procedure for imposing a variance

sentence, we vacate Baham’s sentence and remand for resentencing.



                                    I.

      The facts of this case are undisputed.        On August 18, 2005,

Baham was sentenced to 120 months’ imprisonment after pleading

guilty to possessing a firearm in furtherance of a drug trafficking

offense, in violation of 18 U.S.C.A. § 924(c)(1)(A)(iii) (West 2000

& Supp. 2006).     He was housed at the Washington County Jail in

Plymouth, North Carolina while awaiting transfer to a federal

correctional facility.

      Baham and another inmate escaped from the Washington County

Jail on October 6, 2005.       The escapees used a piece of metal from

a vent to cut through a sheetrock wall and remove a steel plate

covering a window.      They then used a loose brick from the wall to

break the window and lowered themselves three stories to the ground




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with a rope made of bed sheets.           Baham was arrested without

incident on October 7, 2005.

     As a result of the escape, Baham was charged in a one-count

indictment with escaping from an institutional facility in which he

was lawfully confined for a felony conviction, in violation of 18

U.S.C.A. § 751(a).     He pleaded guilty to the charge on April 10,

2006.

     At sentencing, the district court adopted the findings of the

presentence report (PSR).      The PSR computed Baham’s total offense

level at 15.     Baham had 15 criminal history points, which placed

him in criminal history category VI.      The offense level of 15 and

criminal history category of VI resulted in an advisory guidelines

range of 41 to 51 months’ imprisonment.          The PSR noted that the

court might wish to consider an upward departure pursuant to U.S.

Sentencing Guidelines Manual § 4A1.3 (2005) on the basis that the

extent and nature of the defendant’s past criminal history resulted

in   a    criminal   history   category   that    underrepresented   the

seriousness of his criminal history and the likelihood that he

would commit future crimes.

        During the sentencing hearing, Baham’s counsel argued for a

sentence at the low end of the advisory guidelines range, while the

Government recommended a sentence at the high end of the range.

The district court, however, exercised its discretion to impose a




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variance sentence of 60 months’ imprisonment.1 The district court

emphasized the seriousness of Baham’s criminal history, which

included “shooting at a law enforcement officer” and wounding the

driver of the car in which Baham had been riding.                 (J.A. at 34.)

The district court indicated that it had considered the advisory

guidelines range, the other relevant factors set forth in the

Guidelines, and the factors set forth in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2006). It found that the advisory guidelines

range did “not adequately reflect the seriousness of [Baham’s]

present conduct, his past criminal conduct, his history of similar

misconduct or the likelihood that [he would] commit future crimes.”

(J.A. at 35.)     Accordingly, the district court found that “a more

lengthy   period    of    incarceration        would    meet    the    sentencing

objectives   of    deterrence,    rehabilitation,        just   punishment    and

incapacitation.”      (J.A. at 35-36.)     The district court offered no

further explanation as to why a 60 month sentence better served the

objectives of sentencing, nor did the court consider a traditional

departure based on Guideline § 4A1.3.

     Baham   timely      noted   an   appeal    to     this   court.     We   have

jurisdiction pursuant to 18 U.S.C.A. § 3742 (West 2000 & Supp.

2006) and 28 U.S.C.A. § 1291 (West 2006).




     1
      The district court also imposed a three-year term of
supervised release and ordered Baham to pay the Washington County
Jail $3,400 in restitution.

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                                     II.

       We review the sentence imposed for reasonableness.                  United

States v. Booker, 543 U.S. 220, 261 (2005). In determining whether

a sentence is reasonable, we review the district court’s legal

conclusions de novo and its factual findings for clear error.

United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).

       Post-Booker, a sentencing court must engage in a multi-step

process that begins with correctly determining the defendant’s

guideline range. United States v. Moreland, 437 F.3d 424, 432 (4th

Cir. 2006).     “Next, the court must determine whether a sentence

within that range . . . serves the factors set forth in § 3553(a)

and, if not, select a sentence [within statutory limits] that does

serve those factors.”        Id. (alterations in original) (internal

quotation marks omitted).        “In doing so, the district court should

first look to whether a departure is appropriate based on the

Guidelines     Manual   or   relevant       case   law.”   Id.        If   it   is

appropriate, the court may depart; if the “departure range still

does not serve the factors set forth in § 3553(a), the court may

then   elect   to   impose   a   non-guideline       sentence    (a   ‘variance

sentence’).”     Id.    As part of this process, “[t]he district court

must articulate the reasons for the sentence imposed, particularly

explaining any departure or variance from the guideline range.”

Id.




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     A    district   court’s     mandate       “is   to    impose     a   sentence

sufficient, but not greater than necessary, to comply with the

purposes of § 3553(a)(2).”        United States v. Davenport, 445 F.3d

366, 370 (4th Cir. 2006) (internal quotation marks omitted).

“Reasonableness is the appellate standard of review in judging

whether   a   district   court    has       accomplished    its     task.”      Id.

(emphasis     in   original)   (internal        quotation     marks       omitted).

Ultimately,

     [T]he overarching standard of review for unreasonableness
     will not depend on whether we agree with the particular
     sentence selected, but whether the sentence was selected
     pursuant to a reasoned process in accordance with law, in
     which the court did not give excessive weight to any
     relevant factor, and which effected a fair and just
     result in light of the relevant facts and law.

United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (internal

citation omitted).       Thus, reasonableness review involves both

procedural and substantive components.            Moreland, 437 F.3d at 434.

A sentence will be procedurally unreasonable, for example, if the

district court provides an inadequate statement of reasons.                   Id.

     Baham argues that his sentence is both procedurally and

substantively unreasonable.        He contends that (1) the district

court offered an inadequate statement of reasons and erred by not

first considering a departure under the Guidelines before imposing

a variance sentence and (2) that the record does not support the

district court’s finding that a variance was warranted because

Baham’s criminal history category substantially underrepresented


                                        6
the seriousness of his criminal history or the likelihood that he

would commit future crimes.   Because we agree (and the Government

concedes) that the district court did not follow the required

procedure for imposing a variance sentence, we need not address

Baham’s second argument.

     The Government concedes that the district court erred “by not

stating why it chose the particular sentence, or why a departure

sentence was not appropriate.”       (Appellee’s Br. at 16.)    The

Government argues, however, that Baham failed to object to the

court’s “use of the variance analysis” at sentencing, and that his

challenge to the procedure employed by the district court is

therefore reviewable only for plain error, not for reasonableness.

(Appellee’s Br. at 14.)2   We disagree.   Baham adequately preserved

the issue for appeal by arguing that a sentence above the low end

of the advisory guidelines range was unwarranted.        See United

States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (“The government

preserved its objection to the sentence by vigorously arguing for

a sentence within the Guidelines range throughout the sentencing

hearing.”); Fed. R. Crim. P. 51(b) (“A party may preserve a claim


     2
      Under the plain error standard of review, the defendant bears
the burden of making a threshold showing that (1) there was an
error; (2) the error was plain; and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 731-32
(1993). If the defendant makes such a showing, we may exercise our
discretion to correct the error, but should exercise that
discretion only if failure to correct the error would seriously
affect the fairness, integrity, or public reputation of the
proceedings. Id. at 732.

                                 7
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.”).

     Guideline § 4A1.3 provides for a standard upward departure if

“the defendant’s criminal history category substantially under-

represents the seriousness of the defendant’s criminal history or

the likelihood that the defendant will commit other crimes.”

U.S.S.G. § 4A1.3.    The district court, however, did not consider a

departure under Guideline § 4A1.3 or explain why departing under

the Guidelines would prove inadequate.         Baham’s sentence comes

within a guideline range that is two levels above the level that

corresponds to his advisory guidelines range.           The Government

argues that any error is essentially harmless, because the district

court’s imposition of a 60 month sentence demonstrates that it

found that a sentence within the range immediately above Baham’s

calculated advisory guidelines range would be inadequate.              The

record,   however,   contains   no   information   indicating   that   the

district court in fact considered a sentence within the lower range

and no explanation of why such a sentence would be inappropriate.

See United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992) (“In

determining the extent of a departure based on inadequacy of

criminal history above Criminal History Category VI, the court

should move to successively higher categories only upon finding


                                     8
that the prior category does not provide a sentence that adequately

reflects the seriousness of the defendant’s criminal conduct.”).

Accordingly, we conclude that Baham’s sentence was unreasonable.



                                     III.

     In sum, we conclude that the district court erred by not

considering     whether    a   departure         under    the    Guidelines    was

appropriate     before    imposing   a      60    month     variance    sentence.

Accordingly,     we   vacate    Baham’s          sentence       and   remand   for

resentencing.

                                                          VACATED AND REMANDED




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