                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4641


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JESUS TORRES-AGUIRRE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cr-00269-BR-1)


Submitted:   April 24, 2012                 Decided:   June 5, 2012


Before SHEDD, DAVIS, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant.    William Ellis Boyle, OFFICE OF
THE UNITED STATES ATTORNEY, Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Jesus      Torres-Aguirre         appeals      his      conviction     and   the

144-month sentence imposed upon him after his guilty plea to

conspiracy to distribute more than 5 kilograms of cocaine, more

than    50    grams      of    cocaine      base,     and    a     quantity     of    heroin.

Torres-Aguirre’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he states that he has

divined no meritorious grounds for appeal but questions whether

Torres-Aguirre’s              trial         counsel         was        unconstitutionally

ineffective with respect to several aspects of his sentencing.

Having       reviewed         the     record,        we     affirm        Torres-Aguirre’s

conviction but vacate his sentence and remand the case to the

district court for resentencing.

              We         review          Torres-Aguirre’s                 sentence         for

reasonableness,          applying        an     abuse      of     discretion        standard.

Gall v.      United      States,      552     U.S.   38,    51    (2007).       A    sentence

imposed by a district court is procedurally unreasonable if the

district court committed a significant procedural error, “such

as     failing      to     calculate          (or    improperly        calculating)        the

Guidelines range, treating the Guidelines as mandatory, failing

to consider the [18 U.S.C. § 3553(a) (2006)] factors, selecting

a    sentence      based      on    clearly     erroneous        facts,    or   failing     to

adequately explain the chosen sentence.”                        Id.



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            Our precedent insists upon an adequate explanation of

the sentence imposed:              “Regardless of whether the district court

imposes an above, below, or within-Guidelines sentence, it 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) (internal quotation

marks omitted).         This requirement is not overly onerous.                           Where

the    district   court          imposed    a    within-Guidelines       sentence,          the

explanation may be “less extensive, while still individualized.”

United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009),

cert. denied, 130 S. Ct. 2128 (2010).                       Moreover, the district

court    “need    not       robotically         tick   through    §    3553(a)’s          every

subsection;”      it    must       only    provide     “some     indication”         that    it

considered the § 3553(a) factors with respect to the defendant

before it and also considered any nonfrivolous arguments raised

by the parties at sentencing.                    United States v. Montes-Pineda,

445 F.3d 375, 380 (4th Cir. 2006).

            Nevertheless,           “[t]he       district    court      must    ‘state       in

open    court’    the        particular         reasons     supporting         its    chosen

sentence.”       United States v. King, 673 F.3d 274, 283 (4th Cir.

2012) (quoting         18    U.S.C.       § 3553(c)     (2006)).        And,    while       the

district court’s explanation “need not be elaborate or lengthy,”

Johnson, 587 F.3d at 639, it must be sufficient to allow for

“‘meaningful      appellate            review,’”       Carter,    564     F.3d       at     330

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(quoting Gall v. United States, 552 U.S. 38, 50 (2007)), such

that the appellate court need “not guess at the district court’s

rationale.”         Id. at 329.

               In this case, Torres-Aguirre preserved his challenge

to    the     adequacy     of     the    district         court’s      explanation       “[b]y

drawing arguments from § 3553 for a sentence different than the

one ultimately imposed.”                United States v. Lynn, 592 F.3d 572,

578    (4th     Cir.     2010).         Thus,       our    review      is    for     abuse   of

discretion, and any error must result in reversal unless it was

harmless.       Id. at 579.

               As    the   record       reveals,          when    the       district    court

sentenced       Torres-Aguirre,          it     did       not    explain      its     selected

sentence in any detail, made no reference to any of the factors

enumerated in 18 U.S.C. § 3553(a) (2006), and failed to give

Torres-Aguirre’s “nonfrivolous reasons for imposing a different

sentence” explicit consideration.                     Id. at 581 (quoting Rita v.

United States, 551 U.S. 338, 357 (2007)).                         We conclude that the

district court erred in leaving the record effectively bereft of

any reason for the sentence that it imposed.                                See Carter, 564

F.3d at 330.

               Nor can we deem the district court’s error harmless.

Even   though       “the   extent       of    harm    caused      by    [the]       procedural

sentencing error [is] not immediately clear” in light of the

fact that Torres-Aguirre received a sentence that was well below

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the   applicable   Guidelines   range,     Lynn,   592    F.3d   at    585,   we

cannot determine on the basis of the record “why the district

court deemed the sentence it imposed appropriate.”                  Id. at 582

(quoting Carter, 564 F.3d at 330).          Torres-Aguirre argued for a

sentence lower than the one that the district court ultimately

imposed, and the district court’s rejection of his nonfrivolous

arguments was entirely without explanation.            Because we are left

only to speculate regarding the district court’s reasons for

choosing the sentence that it did, we vacate Torres-Aguirre’s

sentence and remand the case for resentencing.             See id.; Carter,

564 F.3d at 330.     Given this disposition of the appeal, we have

no occasion to address the other sentencing errors asserted in

counsel’s Anders brief.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no other meritorious issues

for appeal.     We therefore affirm Torres-Aguirre’s conviction,

vacate his sentence, and remand for resentencing.                   This court

requires that counsel inform Torres-Aguirre, in writing, of the

right to petition the Supreme Court of the United States for

further review.     If Torres-Aguirre requests that a petition be

filed,   but   counsel   believes   that    such   a     petition     would   be

frivolous, then counsel may move in this court for leave to

withdraw from representation.       Counsel’s motion must state that

a copy thereof was served on Torres-Aguirre.

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            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.

                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




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