                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-5028


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

DONALD TAYLOR,

                 Defendant - Appellant.



                             No. 08-5039


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

CEDRIC TAYLOR,

                 Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00102-F-1; 5:07-cr-00102-F-2)


Argued:   January 29, 2010                 Decided:   March 22, 2010


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, modified in part, and
remanded by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Motz and Judge Gregory joined.


ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina; Marilyn G.
Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, for
Appellants. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.      ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

     Appellants Donald and Cedric Taylor were convicted on drug

trafficking    and    witness      tampering    charges   and   were    sentenced

accordingly in the United States District Court for the Eastern

District of North Carolina. They now appeal their convictions

and sentences. Together, they assert that the district court

erred in (1) denying their motions for judgment of acquittal on

the witness tampering charge; (2) sentencing them to 240 months

on the witness tampering charge; and (3) failing to provide an

adequate explanation for their sentences. In addition, Cedric

Taylor   alleges      error   in    the    district   court’s     admission    of

laboratory reports without the testimony of the lab technician,

and Donald Taylor alleges error in the district court’s refusal

to apply a sentencing guidelines adjustment for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a). We conclude that

the district court provided an inadequate explanation of the

sentence imposed on Cedric Taylor. Accordingly, we vacate the

sentence    and      remand   for     further     proceedings     as    to    him.

Furthermore, we find, as the government concedes, that the lower

court erred when it imposed 240-month sentences on the witness

tampering     charge.    In   all     other     respects,   for   the    reasons

explained within, we affirm.




                                          3
                                           I.

    The       Appellants   were      charged      in     a    six-count     superseding

indictment for conspiracy to distribute and possess with intent

to distribute more than 50 grams of crack cocaine, in violation

of 21 U.S.C. § 846 (Count One); distribution of more than 50

grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

(Counts Two and Three) (Donald Taylor only); tampering with a

witness through threats of physical force, in violation of 18

U.S.C.    §    1512(a)(2)(C)      (Count        Four);       attempting     to    kill    a

witness, in violation of 18 U.S.C. § 1512(a)(1)(C) (Count Five);

and attempting to kill a witness in retaliation, in violation of

18 U.S.C. § 1513(a)(1)(B) (Count Six). Donald Taylor pleaded

guilty to the drug counts (Counts One through Three) and not

guilty to the tampering counts (Counts Four through Six); Cedric

Taylor    pleaded    not   guilty     to   all     counts.         The   jury    convicted

Donald Taylor on Count Four (witness tampering through threats)

and found Cedric Taylor guilty of Counts One (drug conspiracy)

and Four. The jury found both Appellants not guilty of Counts

Five and Six.

     The district court sentenced Donald Taylor to 360-months of

imprisonment on the drug counts and 240-months imprisonment on

witness       tampering,   the      sentences      to        run    concurrently.     The

district court sentenced Cedric Taylor to concurrent 240-month

terms    of    imprisonment    on    the   drug     and      tampering      counts.      The

                                           4
defendants      filed     timely      notices   of    appeal    and      we    have

consolidated the appeals. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 3742.



                                        II.

     In 2006, the Cumberland County Bureau of Narcotics and the

United States Drug Enforcement Administration launched a drug

distribution investigation in Fayetteville, North Carolina. The

investigation revealed that, along with others, Donald Taylor

ran a drug distribution ring in Cumberland County.

                                         A.

     The   Appellants      do   not    challenge     the   sufficiency    of   the

evidence   as    to     their   narcotics     convictions;     accordingly,     we

briefly summarize that portion of the government’s proof. The

government’s principal trial witness was Bobby Bunnells, a drug

dealer and police informant. 1 He testified that in 2000, he began


     1
       Several other drug dealers and drug users testified at
trial. According to Thomas Hanson, between October 2003 and
March 2004, he sold cocaine or crack to Donald Taylor between 13
to 16 times and he always saw drug traffic at the Taylors’s
residence. Torrey Robinson testified that, between 2002 and
2005, he sold Donald Taylor cocaine and crack more than 20
times. He sold Donald Taylor drugs in front of Cedric Taylor’s
residence while Cedric was present. He also witnessed Cedric
Taylor sell drugs. Ronnie Bowman testified that he bought crack
from Donald Taylor several times, and sold Cedric Taylor
marijuana. Bowman also witnessed Cedric Taylor selling drugs.
Camilo Garza purchased crack from Donald and Cedric Taylor in
2005. Garza testified that lots of drug users stayed at the
Taylors’s residence and used drugs there.
                                         5
to sell 300 to 500 pounds of marijuana per month. In 2001, he

met    Donald     Taylor,     who      had    purchased          a    trailer      home     from

Bunnells’s       father.      That     same       year,    Donald       Taylor      began     to

purchase marijuana, and eventually (in 2003), cocaine and crack

cocaine    from        Bunnells.     Bunnells       supplied         Donald     Taylor      with

crack cocaine on a weekly basis until the middle of 2004. During

drug     deals     at     Donald       Taylor’s      trailer,          Bunnells         observed

significant traffic going to the Taylor residence to purchase

drugs.    He     saw    buyers     knock     on    the    trailer       door      and    request

crack, and he saw Donald Taylor’s girlfriend sell them crack.

Bunnells also witnessed Cedric Taylor assisting Donald Taylor in

his drug enterprise. He saw Cedric Taylor work the door at the

trailer,       weigh    the   crack,       and    hand    the        crack   to    customers.

       Bunnells stopped selling drugs to Donald Taylor in mid-2004

after    he     repeatedly       saw    police      in     the       vicinity.      When     law

enforcement officers arrested Bunnells in 2006, Bunnells began

to cooperate in drug investigations as a confidential informant.

In this capacity, he sought to buy drugs from Donald Taylor.

       Having been out of the drug trade for some time, Bunnells

employed his niece, Crystal Powell, to reconnect him with Donald

Taylor. Powell was an admitted crack addict; she spent time at

the Taylor residence in 2006 and early 2007, sometimes staying

with them and sometimes prostituting herself to them for drugs.

Powell facilitated contact between Donald Taylor and her uncle,

                                              6
and Donald Taylor agreed to meet Bunnells and sell him crack.

Bunnells and Donald Taylor met on September 14, 2006, whereupon

Donald Taylor (who had no drugs readily available) took Bunnells

to another drug dealer’s residence, purchased two and a quarter

ounces       of      crack   with   $1400.00     supplied      to   Bunnells      by

investigators, and gave the crack to Bunnells when they arrived

back at Taylor’s residence. On October 23, 2006, Bunnells made a

second purchase, this time of four and a half ounces of crack (a

so-called “Big 8”) from Donald Taylor for $4000.00 in government

funds. Cedric Taylor was present during the second transaction. 2

                                          B.

       The witness tampering and attempted murder charges arose

from events occurring several months after the above-described

drug       purchases    by   Bunnells   from   Donald    Taylor.    Based   on   the

following evidence, the government theorized that the Appellants

learned       that    Bunnells   was    cooperating     with   investigators     and

undertook to kill him.



       2
       During the investigation, agents executed at least two
search warrants at properties controlled by the Appellants. On
August 4, 2006, they executed a search warrant at a trailer used
as a dope house, seizing an armored vest, a loaded gun, digital
scales, and fliers advertising the sale and distribution of
crack by Donald Taylor. On January 23, 2007, they executed a
search warrant at Donald Taylor’s residence. Both Donald and
Cedric were present when the warrant was executed. Agents found
the residence littered with drug paraphernalia. They also seized
firearms and ammunition.

                                           7
         Crystal      Powell,   Bunnells’s     niece,   spent   significant    time

with         Donald   and   Cedric   Taylor,    staying    overnight   at     their

trailer on many occasions, sharing meals with them, and doing

drugs with them. Of relevance to the witness tampering charges

against the Appellants, her testimony focused on one particular

night when she accompanied Cedric Taylor to meet a drug dealer

named Bobby Faircloth. She testified that during the meeting,

Faircloth repeatedly winked at Cedric Taylor and stated that the

trailer park was “hotter than a firecracker,” but that “as long

as you’re selling to the police, they can’t fuck with you.” J.A.

309. 3



         3
             Powell testified as follows:

              We pulled up there and Buddy Faircloth was
         sitting there in a van and looked at Cedric and he
         winked his eye and he said three times in a row, he
         said   Velton’s  Trailer   Park   is   hotter than   a
         firecracker, he said, then he goes, but as long as
         you’re selling to the police they can’t fuck with you,
         and he winked his eye, and he said it three times in a
         row, as long as you’re selling with the police they
         can’t fuck with you and winked his eye. He done that
         three times.
              And then we left and got back to the trailer and
         I think they started putting two and two equals four,
         you know what I’m saying? [Donald Taylor] started
         showing me some text messages from my uncle and I
         think he realized what my uncle was doing.
              And I’m not going to sit here and say, it looked
         like I was doing it with my uncle because there was
         times – there was money being borrowed and the whole
         while my uncle was not allowed out of his yard at
         eight o’clock, and even I didn’t even know that, but I
         was being the middle person. They were coming back to
                                          8
      After speaking with Faircloth, Cedric Taylor returned with

Powell     to    the   Taylors’s      trailer.    Soon    after       their     arrival,

Donald     Taylor      showed   Powell    text       messages    from      Bunnells      —

messages that caused her to believe that he knew that Bunnells

was   working       with   investigators.        One    text    message         concerned

Bunnells asking Donald Taylor to do another drug sale.

      At   approximately        the   same    time     that    the    Taylors     showed

Powell the text messages, the Taylor brothers, their cousin “Big

G,” and a man named Harold Clark, each of whom was also at the

trailer, were saying things like, “all you have to do is pull

the trigger, pull the trigger.” J.A. 310. Powell also testified

that Donald Taylor indicated that he was willing to do “whatever

it took” to avoid jail, and that Harold Clark was walking around

the trailer with a gun, plastic handcuffs, and duct tape.

      In   due    course,   Donald      Taylor    instructed         one   of    the   men

present to take Crystal Powell from the trailer, noting that he

did not care what the man did with Powell, and requiring only

that he be informed of where he took her. The man dropped Powell

off near a friend’s residence, at her direction, and she called

Bunnells immediately and told him that his cooperation had been

exposed.



      me, I was going to meet, and then bringing the money
      back to them.

J.A. 309 (brackets added).
                                          9
     Bunnells testified that on the very next day, January 20,

2007, after a chance encounter near a car wash, Cedric Taylor

and another man engaged in a vehicle chase with Bunnells, firing

shots at Bunnells’s truck. Bunnells escaped by driving his truck

into a field, abandoning his vehicle, and fleeing into a wooded

area. Thereafter, Bunnells contacted the case agent and told him

about the incident, but did not identify Cedric Taylor as the

shooter until, a day or so later, he had sent his mother and

father out of town.

     Bunnells took Powell to meet with investigators two days

later, and Powell advised them of what had transpired on the

night that she went with Cedric Taylor to visit Bobby Faircloth. 4

                                     C.

     The claim of trial error raised by Cedric Taylor relates to

evidence elicited from Agent Gary Owens of the Cumberland County

Bureau   of    Narcotics.    Owens        testified    about   Bunnells’s

cooperation   and,   specifically,    his   purchase   of   crack   cocaine

from Donald Taylor in September and October 2006. During Owens’s

     4
       The defense argued at trial that Bunnells had concocted
the story of the shooting. In support of that contention, Donald
Taylor presented the testimony of Christopher Crocker, a drug
dealer who had been incarcerated with Bunnells. Crocker
testified that Bunnells told him that he had lied to the
authorities about who shot-up his truck. According to Crocker,
Bunnells stated that he had told the authorities that Donald
Taylor was responsible, but in fact, Bunnells admitted to
Crocker, he had shot-up the truck himself. On cross-examination,
the government sought to impeach Crocker through evidence of his
own aborted plea agreement and his prior silence about Bunnells.
                                     10
testimony, the prosecutor offered into evidence the laboratory

reports generated as a result of the tests performed on those

drugs. Neither counsel objected, and the district court admitted

the reports.



                                            III.

      As mentioned, prior to trial, Donald Taylor pled guilty to

the drug conspiracy and drug distribution counts and not guilty

to   the      three    witness       tampering,      retaliation,       and    attempted

murder counts. At trial, the jury convicted him on the charge of

witness       tampering      by    threat   of    force,    but   it   found    him   not

guilty on the retaliation and attempted murder counts. The jury

found      Cedric     Taylor       guilty   of     drug    conspiracy     and    witness

tampering by threat of force and not guilty on the retaliation

and attempted murder counts.

        The    Appellants         timely    filed     and    renewed     motions      for

judgments of acquittal as to the witness tampering charge. The

district court denied the motions, finding specifically that the

evidence presented at trial was sufficient to support the jury’s

verdict       that     the        Appellants’      intent    in    threatening        and

intimidating Powell was to intimidate and deter Bunnells from

communicating with the authorities about the Appellants’ drug

trafficking activities.



                                             11
                                                  IV.

       We first address the Appellants’ assertions of error in

connection         with     the    denial         of     the    motion    for     judgment     of

acquittal as to the witness tampering charge and the admission

of the lab reports. We then address the sentencing issues they

raise.

                                                   A.

       The    first       issue    is       whether      the    district    court      erred   in

denying the Appellants’ motion for judgment of acquittal under

Fed. R. Crim. P. 29 as to the witness tampering charge. The

Appellants         argue       that         the    government         failed      to    present

sufficient evidence for a jury to find beyond a reasonable doubt

that their threatening and intimidating behavior toward Powell

was intended to intimidate or threaten Bunnells and to deter him

from communicating with law enforcement. The Appellants contend

that   any     inference          of    such      an    intent   is   too    attenuated        and

speculative to support their convictions. They contend that the

only reasonable inference from the evidence is that they were

attempting         to   gain      information           about    and/or     confirmation        of

Bunnells’s         police      connections.             The    government      responds     that

sufficient          evidence           supported          the     jury’s        finding      that

Appellants’ threatening and intimidating actions directly toward

Powell       was    intended           to    deter       Bunnells     and    to     cease      his

cooperation and communication with investigators.

                                                   12
      We review this claim de novo. See United States v. Ryan-

Webster, 353 F.3d 353, 359 (4th Cir. 2003). We must sustain a

guilty     verdict    that,      viewing        the       evidence       in    the       light    most

favorable     to     the    prosecution,             is     supported         by     “substantial

evidence.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc) (quoting Glasser v. United States, 315 U.S. 60,

80    (1942)).       “Substantial          evidence”              is     “evidence          that     a

reasonable       finder     of     fact         could           accept    as       adequate        and

sufficient to support a conclusion of a defendant's guilt beyond

a    reasonable      doubt.”       Id.     To        that       end,     we    “must       consider

circumstantial        as    well     as     direct          evidence,          and       allow     the

government the benefit of all reasonable inferences from the

facts proven to those sought to be established.” United States

v.    Cameron,      573    F.3d     179,        183       (4th     Cir.       2009)       (citation

omitted).

      The    statute       under    which        the        Appellants         were       convicted

prohibits,     in    relevant       part,        “us[ing          or     attempting        to     use]

physical     force    or    the    threat        of       physical        force      against       any

person . . . with intent to . . . hinder, delay, or prevent the

communication by any person to a law enforcement officer . . .

of information relating to the commission or possible commission

of     a     Federal         offense.            .          .      .”         18         U.S.C.      §

1512(a)(2)(C)(alterations            and        emphases           added).         See    generally

United States v. Harris, 498 F.3d 278, 283 (4th Cir. 2007).

                                                13
Here, the Appellants do not argue that they did not threaten the

use of physical force against Powell, the “any person” referred

to    initially       in    the    statute.       Instead,        they    argue    that      the

evidence failed as a matter of law to prove that they harbored

the    requisite        intent,       i.e.,      that     the      evidence       failed      to

establish      that     they      intended      to     “hinder,     delay,    or    prevent”

Bunnells, the second “any person” referred to in the statute,

from     communicating            with    law        enforcement.        We   reject        this

contention.

       Intent     is       most     often       proved       through     inferences         from

circumstantial and indirect evidence. This court has explained

that, “as a general proposition, circumstantial evidence may be

sufficient to support a guilty verdict even though it does not

exclude every reasonable hypothesis consistent with innocence.”

United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008)

(alteration       and       quotation          marks     omitted).       “Indeed,       ‘[t]he

question of one’s intent is not measured by a psychic reading of

[the     defendant’s]          mind      but    by     the     surrounding        facts      and

circumstances; i.e., circumstantial evidence.’” United States v.

Bolden, 325 F.3d 471, 494 (4th Cir. 2003) (quoting United States

v. Larson, 581 F.2d 664, 667 (7th Cir. 1978)). In light of these

well    established         principles,         the     Appellants’        argument       lacks

merit. The jury finding that the Appellants intended to “hinder,

delay,    or    prevent      the      communication          by   any    person    to   a    law

                                                14
enforcement      officer   .    .   .   of   information      relating     to   the

commission or possible commission of a Federal offense[,]” 18

U.S.C. § 1512(a)(2)(C), is properly supported by circumstantial

evidence and reasonable inferences drawn from that evidence.

     Here, the Appellants learned (or strongly suspected) that

Bunnells was cooperating with investigators. The evidence showed

that up until that time, there was no indication that they had

acted in an intimidating or threatening manner toward Powell.

She was a frequent and welcome visitor, purchased and used drugs

in their presence, and often spent the night at their residence.

The sudden and immediate change in their behavior and attitude

toward Powell after the somewhat cryptic eye-winking and veiled

oral warnings by Bobby Faircloth during his meeting with Cedric

Taylor reasonably sheds light on the Appellants’ intent. During

the ensuing encounter back at the trailer, Donald Taylor stated

emphatically within Powell’s hearing that he was willing to do

“whatever   it    took”    to   avoid   jail   time.   And,    one   man    walked

around the trailer with a gun, handcuff ties, and duct tape, all

the while stating, “all you have to do is pull the trigger, pull

the trigger.” J.A. 310.

     In sum, the circumstantial evidence reasonably supports the

inference that the Appellants’ actions and statements during the

encounter with Powell were intended to motivate Powell to advise

her uncle that his continued cooperation and communication with

                                        15
law enforcement about the Appellants’ drug trafficking activity

would      be     dealt      with     violently. 5        Contrary        to     the    Appellants’

contention, the inference of their intent was not speculative or

irrational.         We       hold     therefore        that    the    government            presented

sufficient evidence to prove beyond a reasonable doubt that the

Appellants acted “with intent to . . . hinder, delay, or prevent

the communication by [Bunnells] to a law enforcement officer . .

.     of    information             relating      to    the     commission             or    possible

commission of a Federal offense.” See 18 U.S.C. § 1512(a)(2)(C).

The    district         court       did    not    err     in    denying         the    motions       for

judgment of acquittal.

                                                   B.

       Cedric Taylor contends that the district court erred when

it     admitted         in     evidence       laboratory         reports         describing         the

results of drug analyses without the sponsoring testimony of the

lab    technician.           He     argues    that      admission         of    the    lab       reports

violated          his        rights       under      the       Confrontation            Clause       as

interpreted             by     the        Supreme       Court        in        Melendez-Diaz          v.

Massachusetts, 129 S. Ct. 2527 (2009). The government argues

that       this    claim       has     been      waived    by    the       failure          of    Cedric

Taylor’s counsel to lodge a contemporaneous objection to the

admission of the reports at trial and that this court should not


       5
       The indictment charged the Appellants with                                       aiding      and
abetting each other in the witness tampering counts.
                                                   16
notice “plain error” in the circumstances presented. We agree

with the government.

       As   there   was   no     objection   to   the    admission   of   the   lab

reports, we review this claim for plain error. See Fed.R.Crim.P.

52(b); United States v. Olano, 507 U.S. 725, 732-35 (1993). As

we have explained:

       Under plain error review, [Appellant] must show that
       (1) the district court committed an error; (2) the
       error was plain; and (3) the error affected his
       substantial rights, i.e., that the error affected the
       outcome of the district court's proceedings. United
       States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770,
       123 L.Ed.2d 508 (1993); United States v. Hughes, 401
       F.3d 540, 547-48 (4th Cir. 2005). Even if [Appellant]
       makes this showing, we should only notice the error if
       the error “seriously affects the fairness, integrity
       or public reputation of judicial proceedings.” Hughes,
       401 F.3d at 555 (internal quotation marks and citation
       omitted).

United States v. Perkins, 470 F.3d 150, 155 n.7 (4th Cir. 2006).

       In this case, we have no hesitation in concluding that any

error in the district court’s admission of the lab reports did

not affect the outcome of the proceedings below. Cedric Taylor

has neither argued nor ever raised any issue at trial or in the

current appeal that the substances purchased by Bunnells from

Donald Taylor in September and October 2006 were anything other

than crack cocaine. Of course, Cedric Taylor was not charged

with    substantive       drug    violations      in    connection   with   those

transactions. He was charged with knowing membership in a drug

trafficking conspiracy involving more than 50 grams of crack

                                        17
cocaine. Consequently, Cedric Taylor’s sole claim on appeal is

that the admission of the lab reports prejudiced his right to a

fair trial by “documenting” that the weight of the crack cocaine

in    those    transactions       totaled    168.8     grams    (approximately          six

ounces). See Appellants’ Br. 35 (Asserting that “admission of

the   lab     reports    documenting      168.8    grams   of        cocaine    base    was

extremely prejudicial, as this was the only evidence of quantity

which    appeared       to   be   unquestionably       reliable.”);          id.   at    36

(“Compared      to   the     testimony    of     the   assorted       drug     users    and

dealers, the lab report must have seemed to the jurors to be

unimpeachable.”).

       But this contention borders on the specious. The evidence

that the multi-year drug trafficking conspiracy charged in Count

One of the indictment involved more than a mere 50 grams of

crack    cocaine     was      simply     overwhelming.         See     supra    note     1.

Furthermore, Bunnells fully described for the jury his purchases

of crack cocaine mentioned in the lab reports using government

funds, a total of $5,400.00 paid for approximately six and three

quarter ounces. Bunnells testified that at the second of the two

purchases, that of the “Big 8,” Cedric Taylor was present. In

short, the testimonial evidence shows conclusively that Cedric

Taylor was not prejudiced by the admission of the lab reports of

drug analyses admitted without objection during the testimony of

Agent Owens.

                                            18
                                                V.

       The    Appellants          have        raised       three       issues       related    to

sentencing. First, each argues that the district court committed

procedural error when it failed to explain adequately the bases

for the sentences it imposed. Second, Donald Taylor contends

that   the    court       erred    in    failing          to   apply    the       acceptance    of

responsibility        adjustment          at        his    sentencing.          Finally,      both

contend      that    the    court       erred       in    imposing     a    sentence     of    240

months on the witness tampering conviction. We address these

assertions in turn.

                                                A.

       The Appellants argue that their sentences must be vacated

because the district court failed to explain, consonant with our

precedents,         the    bases        for     the       sentences        it     imposed.     The

government      counters          that        the     district       court        conducted    an

individual      assessment         of    Appellants’           cases       and,    in   context,

adequately set forth its reasons for its sentences.

       As we recently explained:

            We have addressed claims of procedural sentencing
       error in several recent cases. Relying on Supreme
       Court guidance, we have held that for every sentence-
       whether above, below, or within the Guidelines range-a
       sentencing 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) (quoting Gall, 552
       U.S. at 50, 128 S.Ct. 586). But we have also held that
       in explaining a sentencing decision, a court need not
       “robotically   tick   through    §   3553(a)'s   every

                                                19
         subsection,” particularly when imposing a within-
         Guidelines sentence. United States v. Johnson, 445
         F.3d 339, 345 (4th Cir. 2006). “[A] major departure
         [from the Guidelines] should be supported by a more
         significant justification than a minor one,” Gall, 552
         U.S. at 50, 128 S.Ct. 586, but an individualized
         explanation must accompany every sentence. See United
         States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009);
         Carter, 564 F.3d at 330.

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

Importantly, “in determining whether there has been an adequate

explanation, we do not evaluate a court’s sentencing statements

in   a    vacuum;”   rather,      “[t]he    context      surrounding    a   district

court’s explanation may imbue it with enough content for us to

evaluate both whether the court considered the § 3553(a) factors

and whether it did so properly.” United States v. Montes-Pineda,

445 F.3d 375, 381 (4th Cir. 2007).

                                      1.

         As to Donald Taylor, the district court fully heard defense

counsel’s arguments and allocution, and then it actually imposed

the exact sentence that defense counsel requested: a sentence at

the very bottom of the applicable guidelines range. Here is what

counsel stated to the court:

              I’ve talked to Mr. Taylor about this, your Honor,
         and I’m sure the court’s aware that when you start out
         with a base offense level of 38, you’re automatically
         dealing with an enormous sentence. You add some of the
         offense characteristics we’re at in this case, and, of
         course, it just goes up. I don’t know that really
         anything else kind of matters. Any sentence that the
         court would give Mr. Taylor is a phenomenal amount of
         time in jail. I would submit to the court that a

                                           20
     sentence at the bottom of that range, still being a
     phenomenal number, would be sufficient in this case to
     address the purposes of sentencing.

J.A. 974 (emphasis added). We have reviewed the record and find

that counsel’s request was reasonable under the circumstances.

Although     the     district         court    said   little     to    explain    its    own

reasons      for     agreeing         with     counsel’s    assessment,         under    the

circumstances, that is, “in context,” not much needed saying.

Lynn,    592    F.3d       at    580    (“[Appellant’s]          attorney's      arguments

before the district court urged that court only to impose a

sentence within the Guidelines range, which it did. Accordingly,

we   must      affirm.”).        We    discern       no   procedural      error    in    the

sentencing of Donald Taylor.

                                                2.

        We   reach     a        contrary       conclusion      with     regard    to     the

sentencing of Cedric Taylor. During Cedric Taylor’s sentencing

hearing,       the    district         court     listened    to       defense    counsel’s

arguments      regarding         Cedric       Taylor’s    age,    education,      lack    of

criminal convictions, and his relationship with his co-defendant

brother. Defense counsel also argued that the evidence against,

and the apparent involvement of, Cedric Taylor, was slight in

comparison to that of his brother. Counsel urged the district

court to impose a ten year sentence, stating:

             I would submit, your honor, that an appropriate
        sentence as to Cedric Taylor would be the mandatory
        minimum of 120 months; that the sentencing guidelines

                                                21
     is advisory, and you're not required to give him a
     guideline sentence if the court is so inclined; that
     based on the circumstances of his life, the facts that
     were going on with his brother and his involvement in
     these offenses that he's been accountable for, that
     the mandatory minimum is the appropriate sentence and
     ask that you give him 120 months.

J.A. 956-57. At the court’s invitation, the Assistant United

States Attorney responded to the above argument in this fashion:

          [We] request, your Honor, a sentence within that
     guideline range as found applicable by the court. Of
     course, to vary downward the court must be able to
     articulate reasons for such a variance. In this case,
     the circumstances of the case rather than crying out
     for a downward departure for this defendant I think
     would do the opposite. It was a vicious case. It was a
     violent case. Under the influence of his brother or
     not, an appropriate sentence in this case would be
     that found in that advisory guideline range.

J.A. 957. Then, again at the court’s invitation, counsel for

Cedric Taylor was given the final word, as follows:

          If it was so bad, Mr. Donald Taylor was indicted
     one year before his brother Cedric was. And if the
     court can look at the file, only about a month before
     Donald Taylor comes to trial is his brother indicted
     for all of these heinous offenses that everyone had
     known about. Basically the government inserted Cedric
     Taylor's name into three or four counts of the
     indictment. If they had all this knowledge--you've
     heard the testimony of these witnesses: "I've been
     debriefed half a dozen times and I never once
     mentioned the name Cedric Taylor. "When was the first
     time you mentioned his name? "A week before when we
     were getting ready for trial." The discovery has three
     places where Cedric Taylor's name is mentioned. One is
     on the porch, one he gave a user amount of cocaine,
     and one from Crystal Powell that says Cedric delivered
     some undescript [sic] amount of cocaine. That's it.
     And now he's going to get 20 years based on these
     witnesses. One hundred and twenty (120) months is
     sufficient in Cedric Taylor's case.

                               22
 J.A. 958. The court then offered Cedric Taylor an opportunity

to   speak   and    thereafter,    immediately           imposed   a     twenty   year

sentence     (slightly   above     the   very       bottom    of   the    applicable

guidelines range of 235-293 months) as follows:

           The court finds the basis for the findings
      contained in the pre-sentence report credible and
      reliable   and  therefore   the   court  adopts  those
      findings. Based on those findings, the court has
      calculated the imprisonment range prescribed by the
      advisory sentencing guidelines and has considered that
      range, as well as other relevant factors set forth in
      the advisory guidelines, and those set forth in 18
      United States Code, section 3553(a). Pursuant to the
      Sentencing Reform Act of 1984, it is the judgment of
      the court that Cedric Taylor is hereby committed to
      the custody of the bureau of prisons to be imprisoned
      for a term of 240 months on each count to be served
      concurrently. Upon release from imprisonment, the
      defendant shall be placed on supervised release for a
      term of five years. This term consists of a term of
      five years on count one and a term of three years on
      count four, all such terms to run concurrently.

                              *      *        *      *

           Inasmuch as the range exceeds 24 months, the
      court has imposed a sentence near the bottom of the
      range because there are no unaccounted for aggravating
      factors and because of the defendant's lack of
      criminal convictions.

J.A. 959-62 (emphasis added).

      As   the   above   excerpt    from      the    Cedric    Taylor     sentencing

hearing    shows,    while   the   district         court    commendably     allowed

counsel a full opportunity to make vigorous arguments to aid the

court in determining an appropriate sentence, the court never

explicated its reasons for imposing a twenty year sentence. The

                                         23
court’s    failure     is    especially    striking     in    light      of   the   non-

spurious bases identified in detail by counsel for a variance

sentence, to which the court never adverts. Certainly, the case

involved      facts    that    might      warrant   a    sentence         within     the

applicable guidelines range. Nevertheless, we are wholly unable

to   assess    the     reasonableness       of   the    sentence         because    the

district court failed to state the reasons for the sentence it

imposed.

     The government’s reliance on the portion of the court’s

statement, which we have underscored, that “the court . . .

imposed a sentence near the bottom of the range because there

are no unaccounted for aggravating factors and because of the

defendant's     lack    of    criminal    convictions,”       is    unavailing.       In

prefacing those remarks with the statement, “[i]nasmuch as the

range exceeds 24 months,” the court makes it clear that it is

complying     with    the    statutory    requirement        that   it    state     “the

reason for imposing a sentence at a particular point within the

[guidelines] range.” 18 U.S.C. § 3553(c)(1). 6 A district court’s


     6
         Section 3553(c)(1) provides as follows:

     (c) Statement of reasons for imposing a sentence.—The
     court, at the time of sentencing, shall state in open
     court the reasons for its imposition of the particular
     sentence, and, if the sentence--
     (1) is of the kind, and within the range, described in
     subsection (a)(4) and that range exceeds 24 months,
     the reason for imposing a sentence at a particular
     point within the range . . . .
                                          24
explanation of its selection of a sentence within a sentencing

guidelines range, as required by 18 U.S.C. § 3553(c)(1), may

well    provide,      in    an   appropriate      case,     the      “‘individualized

assessment’ based on the particular facts of the case before

it,” as required by Gall, 552 U.S. at 50, and Carter, 564 F.3d

at     330.     The    explanation       provided        here,       however,          falls

considerably short of that standard.

       Accordingly,        for   the   reasons     set    forth,      we       vacate   the

sentence      imposed       on    Cedric        Taylor    and        we    remand       for

resentencing.

                                           B.

       Donald     Taylor    contends     that,     because      he    entered      guilty

pleas to the drug conspiracy and drug distribution counts, the

district court erred when it refused to apply the acceptance of

responsibility adjustment pursuant to U.S.S.G § 3E1.1(a). In his

brief    on     appeal,     Donald     Taylor     argues,    in      part,      that    the

adjustment clearly would be warranted if this court vacates his

conviction on the witness tampering charge. As explained above,

we affirm that conviction. But he also contends that, even if

the     witness    tampering      conviction       is    affirmed,         a    two-level

reduction in the adjusted offense level is appropriate because

he: (1) pled guilty to all drug counts brought against him; (2)




18 U.S.C. § 3553(c)(1).
                                           25
accepted responsibility for his “drug offense-related action;”

and   (3)    failed     to    challenge         the    presentence           investigation

report, which included evidence of drug weights, admitted due to

“hearsay statements by potentially unreliable and non-credible

co-conspirators.”

      The government argues that the district court did not err

in refusing to grant defendant an acceptance of responsibility

adjustment,    in     part    because   the      drug    counts       and     the   witness

tampering    counts     were    grouped     in        Donald    Taylor’s        guidelines

calculation. We agree. The grouping of the drug counts of the

indictment with the witness tampering count in the guidelines

computation dictates that, though Donald Taylor pled guilty to

the former counts, his conviction on the latter count precludes

application of U.S.S.G. §3E1.1. United States v. Hargrove, 478

F.3d 195, 200 (4th Cir. 2007) (“[U]nder the terms of U.S.S.G. §

3E1.1, the defendant must . . . accept responsibility for the

grouped     guidelines       counts   in    order       to     be    eligible       for   the

reduction       in       offense        level           for          that       particular

offense.”)(internal          quotations         omitted);           United     States     v.

Garrido, --- F.3d ---, 2010 WL 653439 at *5 (9th Cir. Feb. 25,

2010) (“We join our sister circuits in holding that, where a

defendant accepts responsibility for all counts that are grouped

under U.S.S.G. §§ 3D1.1-3D1.5, that defendant is eligible for

the § 3E1.1 reduction for those counts, even if the defendant

                                           26
has not accepted responsibility for other counts which, under §

3D1.1(b), are excluded from grouping.”)(citing Hargrove). Thus,

the   district         court   did    not    err    in   declining        to   apply    the

acceptance        of   responsibility       adjustment       in   calculating      Donald

Taylor’s guidelines.

                                             C.

      Finally,         the   Appellants      contend     that     the   district      court

committed plain error when it imposed twenty year sentences on

the     witness         tampering         convictions        under      18     U.S.C.     §

1512(a)(2)(c).          Although     neither       defense      counsel      objected   at

sentencing,        the       government      agrees      that     at    the    time     the

Appellants committed that offense in January 2007, the statutory

maximum penalty was ten years. (Congress amended the statute in

2008 to increase the penalty to a maximum of twenty years.) It

is clear in the record that the district court’s imposition of a

twenty year sentence was inadvertent. Cf. Weaver v. Graham, 450

U.S. 24, 28 (1981) (discussing ex post facto clause); Lynce v.

Mathis,     519    U.S.      433,   441    (1997)    (same).      Although     there    was

extensive discussion (and agreement) among the parties and the

magistrate judge who arraigned the Appellants that the maximum

potential sentence was ten years on the witness tampering charge

under   §    1512(a)(2)(c),          the    pre-sentence        investigation      report

failed to flag the change for the district judge.



                                             27
       In any event, we agree with the government that, under the

circumstances, the error is amenable to correction as to Donald

Taylor by a simple revision to and reissuance of the judgment

and commitment order because the district court clearly intended

to impose the applicable statutory maximum sentence and to run

that    sentence      concurrently      with    the    sentences       on   the   drug

counts. Of course, as to Cedric Taylor, we have ordered a new

sentencing hearing. The district court shall correct its error

as to the sentence under § 1512(a)(2)(c) in connection with the

resentencing.



                                        VI.

       In    conclusion,        in   appeal    no.    08-5039,    we    affirm      the

convictions and vacate the sentence imposed on Cedric Taylor and

remand with directions that a new sentencing hearing be held in

accordance with the views stated herein. In appeal no. 08-5028,

we affirm the convictions and modify the sentence imposed on

Donald      Taylor   as    to    indictment    count    four     and    remand    with

directions     that    a   revised      judgment      and   commitment      order   be

entered in accordance with the views stated herein. In all other

respects, the judgments are affirmed.



                                         AFFIRMED IN PART, VACATED IN PART,
                                             MODIFIED IN PART, AND REMANDED


                                          28
