                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4757


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KENNETH D. JEFFERSON,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:09-cr-00045-JRS-1)


Submitted:   April 26, 2010                 Decided:   May 24, 2010


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Michael S. Nachmanoff, Federal Public Defender, Nia A. Vidal,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Michael A.
Jagels, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Kenneth D. Jefferson appeals his jury conviction and

108-month sentence for possession of a firearm and ammunition by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).

After        reviewing      the      record        and     considering     Jefferson’s

assignments         of   error,     we   affirm        Jefferson’s     conviction    but

vacate his sentence and remand for resentencing.

               Jefferson first asserts that the district court erred

when    it    excluded      from    evidence       a     Government    witness’s    prior

felony convictions, in accordance with Fed. R. Evid. 609(b).                          We

review       the     district       court’s        determination        regarding    the

admissibility of evidence for an abuse of discretion.                              United

States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir. 2005).                            “An

abuse of discretion occurs only when a trial court has acted

‘arbitrarily’ or ‘irrationally’ in admitting evidence, when a

court    has       failed   to     consider       ‘judicially     recognized     factors

constraining its exercise’ of discretion, or when it has relied

on ‘erroneous factual or legal premises.’”                       Id. at 419 (internal

citations omitted).           We conclude that the district court did not

abuse its discretion when it excluded evidence of the witness’s

prior convictions.

               Jefferson next asserts that the district court erred

when it denied his request for an ex parte witness subpoena to

recall   the       Government      witness    after        she   was   excused   without

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objection.       While an unjustified denial of a Fed. R. Crim. P.

17(b) application “may violate a defendant’s right of compulsory

process, such motions are committed to the trial court's sound

discretion.”         United     States    v.      Butler,    885    F.2d       195,    200

(4th Cir. 1989).        “In this circuit, a trial judge's discretion

to deny a [R]ule 17(b) motion made after the beginning of trial

is comparable to his discretion in ruling on a motion for a

continuance to secure a witness during trial.”                           Id. (internal

citation and quotation marks omitted).                    We find no reversible

error    in   the    district    court’s       refusal      to   grant       Jefferson’s

application.

              Jefferson last asserts that the district court erred

when    it    imposed   his    108-month       sentence     without       an    adequate

explanation.         After    United     States      v.   Booker,       543    U.S.    220

(2005),       this    court     reviews       a      sentence      on        appeal    for

reasonableness, using an abuse of discretion standard of review.

Gall v. United States, 552 U.S. 38, 51 (2007).                          The first step

in this review requires the court to ensure that the district

court     committed     no     significant        procedural       error.         United

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

errors include “failing to calculate (or improperly calculating)

the    Guidelines     range,    treating       the    Guidelines        as    mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a   sentence    based   on     clearly    erroneous       facts,     or      failing    to

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adequately          explain       the        chosen      sentence          —     including       an

explanation for any deviation from the Guidelines range.”                                    Gall,

552 U.S. at 51.             If, and only if, this court finds the sentence

procedurally reasonable can the court consider the substantive

reasonableness         of       the    sentence        imposed.           United     States      v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).

               We    find    that      the     district       court      procedurally        erred

when    it   sentenced          Jefferson      to      108   months       in    prison     without

stating      in     open    court      the     particular          reasons      supporting      the

sentence.         Not only did the district court fail to respond to

the arguments Jefferson raised at the sentencing hearing, the

district court also failed to indicate that it even considered

Jefferson’s         arguments         in    rendering        the    sentence       or    that   it

considered the § 3553(a) factors.                        The Government’s assertions

to   the     contrary,       we       simply       cannot    presume       that,     under      the

circumstances of this case, Jefferson would not have received a

lesser sentence had the district court explicitly considered his

non-frivolous         arguments        for     a    sentence       at    the    bottom     of   his

Guidelines range.            See United States v. Thompson, 595 F.3d 544,

548 (4th Cir. 2010).

               Based       on     the       foregoing,         we        affirm     Jefferson’s

conviction but vacate his sentence and remand to the district

court    for      resentencing         in    accordance       with       this     opinion.       We

dispense       with     oral      argument          because        the     facts     and     legal

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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                AFFIRMED IN PART,
                                                 VACATED IN PART,
                                                     AND REMANDED




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