                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4777


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERME ELISEO PACHECO MAYEN, a/k/a Elmer Garcia, a/k/a Miguel
Abrego, a/k/a Elmer Amaya,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:09-cr-00176-CMH-1)


Submitted:   May 27, 2010                 Decided:     June 18, 2010


Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Kevin R. Brehm, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Jason H. Poole, Sarah Roque, Special Assistant
United States Attorneys, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Erme Eliseo Pacheco Mayen pleaded guilty to illegal

reentry of a deported alien who was an aggravated felon and

received a fifty-one-month sentence.                    On appeal, Mayen argues

that the district court erred in failing to rule on an objection

to   the    Government’s       refusal     to    move    for   a   third     level   of

reduction under U.S. Sentencing Guidelines Manual § 3E1.1 (2009)

and that his sentence is procedurally unreasonable because the

court did not sufficiently explain the basis for the sentence

imposed.         We   find    no   error   in   the     proceeding     regarding     the

additional reduction for acceptance of responsibility, but agree

that the sentence is procedurally unreasonable and remand for

resentencing.

                Mayen argues that the district court failed to rule on

his objection to the Government’s refusal to move for a third

point      of    reduction     for   acceptance         of   responsibility.         He

contends that he was prejudiced by the court’s failure because,

if the challenge was successful, the Sentencing Guidelines range

would have been 46 to 57 months, instead of the advisory 51-63

month   range.        The    Government     argues      that   Mayen      conceded   his

original        position     and   withdrew     his   objection      at    sentencing;

therefore there was no outstanding objection on which to rule.

Even if the objection was preserved, the Government argues that

the issue was not reasonably in dispute because counsel did not

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contend     that    the   Government’s             discretionary       decision       was

improper.

            Here,    Mayen    did   not       raise       any    challenge    based    on

improper motive to the Government’s discretionary decision not

to move for the third level of reduction.                         The district court

may require that the Government file for a reduction under USSG

§ 3E1.1(b)    when     its     refusal        to     do     so    is   based    on    an

unconstitutional motive.         United States v. Chase, 466 F.3d 310,

315 n.4 (4th Cir. 2006).            Mayen did not allege such a motive,

nor does one appear on the record.                        Thus, any error by the

district court in failing to specifically rule on the objection

was harmless.

            Next, counsel asserts that the district court did not

adequately consider the mitigating issues raised by Mayen before

imposing sentence.        After United States v. Booker, 543 U.S. 220

(2005), we review a sentence 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.), cert. denied, 129 S. Ct. 476 (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

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a   sentence   based     on    clearly    erroneous       facts,    or   failing      to

adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines range.”                  Gall, 552 U.S. at

51.

            “[I]f a party repeats on appeal a claim of procedural

sentencing error . . . which it has made before the district

court, [this court] review[s] for abuse of discretion” and will

reverse if such an abuse of discretion is found unless the court

can conclude “that the error was harmless.”                    United States v.

Lynn, 592 F.3d 572, 576 (4th Cir. 2010).                     For instance, “the

district court must state in open court the particular reasons

supporting its chosen sentence [and] set forth enough to satisfy

the   appellate       court    that    [it]   has    considered       the    parties’

arguments   and    has    a    reasoned   basis     for    exercising       [its]    own

legal decisionmaking authority.”              United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (internal citations and quotation

marks omitted).        If “an aggrieved party sufficiently alerts the

district court of its responsibility to render an individualized

explanation” by drawing arguments from § 3553 “for a sentence

different      than      the    one    ultimately         imposed,”      the        party

sufficiently      “preserves     its   claim.”       Lynn,    592     F.3d     at   578.

When counsel requests a sentence at the bottom of the Guidelines

range or below, the error is preserved.                     Id. at 581.             In a

post-Lynn case, United States v. Thompson, 595 F.3d 544 (4th

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Cir. 2010), the court explained that “a defendant need only ask

for a sentence outside the range calculated by the court prior

to   sentencing      in    order    to     preserve     his    claim     for    appellate

review.”    595 F.3d at 546.

            We     conclude       that,    under     Lynn     and    Thompson,    Mayen’s

arguments in the district court for a below-Guidelines range

sentence preserved his claim of procedural sentencing error on

appeal.      Lynn, 592 F.3d at 581; Thompson, 595 F.3d at 546.

Therefore, we review any procedural sentencing error for abuse

of discretion and reverse unless the error was harmless.                           Id. at

579.

            The district court erred because it failed to explain

why it imposed the chosen sentence.                         See Lynn, 592 F.3d at

581-82.     The court merely stated that it took into account the

§ 3553(a) sentencing factors and the Guidelines range.                             It did

not address the mitigating factors raised by Mayen, nor provide

any other reason for choosing the sentence imposed.                             We cannot

presume that the district court simply adopted the Government’s

arguments.         The    error    was    not      harmless    because    the    district

court’s lack of explanation for imposing this sentence resulted

in   “a   record    insufficient          to   permit   even        routine    review   for

substantive reasonableness.”               Id. at 582 (citation and quotation

marks omitted).



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           We    therefore     vacate       the   sentence      and    remand   for

resentencing.     We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the    court   and   argument      would   not   aid    the    decisional

process.

                                                          VACATED AND REMANDED




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