                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4644


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAVID NATHANIEL JOHNSON, SR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:03-cr-00089-nkm-1)


Submitted:   March 29, 2010                 Decided:   June 2, 2010


Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Joel C. Hoppe,
Assistant Federal Public Defender, Charlottesville, Virginia,
for Appellant.     Timothy J. Heaphy, United States Attorney,
Ronald    M.   Huber,    Assistant   United States  Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David     Nathaniel        Johnson,         Sr.,   appeals       the   district

court’s order revoking his supervised release and sentencing him

to twenty-one months in prison.                     Johnson argues that: (i) the

district court erred when it determined that his drug possession

violation    constituted       a    Grade      B    violation,        pursuant     to    U.S.

Sentencing       Guidelines     Manual         (“USSG”)        § 7B1.1(a)(2)         (2008),

because there allegedly was only a “dearth of evidence” that he

possessed     drugs    in     Virginia;        and      (ii)    his    twenty-one-month

sentence    is    plainly      unreasonable           because    the       district     court

failed to address his attorney’s argument in mitigation, and

failed to provide an individualized rationale for the sentence

it   imposed.         Although      we        defer     to     the    district       court’s

determination that Johnson committed a Grade B violation, we

nonetheless       vacate      and   remand         to    the    district       court      for

resentencing.

            Where,     as      here,      a       defendant     first       presents      his

assignments      of   error    to   the       district       court    or    argues      for   a

sentence below the advisory policy statement sentencing range

calculated by the district court, we review a sentence imposed

after revocation of supervised release to determine whether it

is “plainly unreasonable.”               See United States v. Thompson, 595

F.3d 544, 546 (4th Cir. 2010); United States v. Crudup, 461 F.3d

433, 437-40 (4th Cir. 2006).              The first step in this analysis is

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to determine whether the sentence was unreasonable.                                Crudup, 461

F.3d    at    438.       In    conducting       this    review,       the       court    follows

generally the procedural and substantive considerations employed

in    reviewing         original      sentences.        Id.    at    438-39;       see     United

States       v.    Finley,       531 F.3d       288,    294    (4th      Cir.      2008)     (“In

applying          the     ‘plainly        unreasonable’          standard,          we     first

determine,         using       the   instructions        given      in   Gall      [v.     United

States,       552       U.S.    38,     51    (2007)],        whether       a     sentence    is

‘unreasonable.’”).

               The       district       court        commits     procedural         error     by

improperly calculating the advisory policy statement sentencing

range.       Gall, 552 U.S. at 51.              In assessing whether the district

court properly applied the Guidelines, we review the district

court’s       factual          findings      for      clear    error        and    its     legal

conclusions de novo.                 United States v. Osborne, 514 F.3d 377,

387 (4th Cir. 2008).                  For mixed questions of law and fact, we

apply a due deference standard in reviewing the district court.

Id.

               “Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence[,]” procedural error

also occurs when the district court fails to adequately explain

the chosen sentence with an “individualized assessment.”                                 United

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal

quotation marks omitted).                    “A court need not be as detailed or

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specific when imposing a revocation sentence as it must be when

imposing a post-conviction sentence, but it still must provide a

statement    of    reasons         for    the       sentence       imposed.”            Thompson,

595 F.3d at 547 (internal citation and quotation marks omitted).

“If, and only if, [the court] find[s] the sentence procedurally

reasonable can [it] consider the substantive reasonableness of

the   sentence     imposed         under    an       abuse-of-discretion             standard.”

Carter, 564 F.3d at 328 (internal quotation marks and citations

omitted).    Only        if    a     sentence          is        found        procedurally         or

substantively unreasonable will this court “decide whether the

sentence is plainly unreasonable.”                     Crudup, 461 F.3d at 439; see

Finley, 531 F.3d at 294.

            We defer to the district court’s determination that

Johnson remained within Virginia’s borders during his supervised

release   and     that    when      he     possessed        narcotics,          he   did      so   in

Virginia.    One of the conditions of Johnson’s supervised release

was that he not leave Virginia without the court’s or probation

officer’s    permission,           and     it       was     uncontested          that      Johnson

engaged in nearly daily narcotics use in April and May 2009, and

tested    positive       for   cocaine          in    Virginia           on    three    separate

occasions.      We find this circumstantial evidence sufficient to

establish    that    Johnson          possessed           cocaine        within        Virginia’s

borders during his supervised release and, thus, his violation

was   properly     classified        as     a    Grade       B    violation.            See    USSG

                                                4
§ 7B1.1(a)(2)            (2008);       see    also       Va.     Code     Ann.    §§    18.2-10(e);

18.2-250; 54.1-3448(1) (2009).

                  We    nonetheless      vacate          Johnson’s        sentence      because   we

find       that    the     district          court       did    not     provide    a     sufficient

explanation for its sentence to allow for meaningful appellate

review.           Although       Johnson        argued         for    a   sentence       below    his

advisory policy statement sentencing range, the district court

failed       to        respond    to    Johnson’s              arguments     and       provided   no

statement of reasons for the sentence imposed other than stating

that it imposed the twenty-one-month sentence “[p]ursuant to the

factors in 3553(a) and considering the Sentencing Guidelines.”

“[A]       district       court    may       not     simply       impose     sentence       without

giving any indication of its reasons for doing so.”                                       Thompson,

595 F.3d at 547.             Accordingly, we find that the district court’s

sentence is procedurally unreasonable. *

                  Having determined that the district court’s failure to

explain its chosen sentence was unreasonable, we next determine


       *
       Although the district court did indicate before Johnson
allocuted that it found Johnson had “illegally possessed a
controlled substance more than one time and that he, by his own
admission, was transferring drugs during this period of
Supervised Release,” the district court appears to have made
this statement to explain why it believed Johnson possessed
cocaine during his supervised release and why it adopted the
Violation Report’s advisory policy statement sentencing range.
Thus, we may not assume that this statement was meant to justify
the particular sentence the district court chose to impose.



                                                     5
whether it was plainly so.           Crudup, 461 F.3d at 439.           As we have

recently recognized, a district court’s obligation to provide

some   basis     for    appellate    review    when     imposing    a   revocation

sentence has been settled in this circuit for some time and,

thus, “the district court’s failure to provide any reasons for

its    sentence    contravened      clear     circuit    precedent      and   [is],

therefore, plainly unreasonable.”               Thompson, 595 F.3d at 548.

Because the Government does not assert that the district court’s

error was harmless, this court may not presume that it is so.

Id.

            Accordingly, although we find no error in the district

court’s advisory policy statement sentencing range calculation,

we vacate Johnson’s sentence and remand to the district court

for    further    proceedings       consistent    with    this     opinion.      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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