                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4819


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

SINCLAIR ARCHIBALD MYERS, a/k/a Lyndon       Francis   Lyndon, a/k/a
Elijah Josiah Middleton, a/k/a Frances       Lyndon,   a/k/a Stephen
Calvin Joseph,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:10-cr-00028-JRS-1)


Submitted:   April 20, 2011                 Decided:   August 9, 2011


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant.     Neil H. MacBride, United
States Attorney, S. David Schiller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sinclair Archibald Myers pled guilty without a plea

agreement to one count of illegal reentry after deportation for

an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2006).     He received a within-Guidelines sentence of eighty-four

months’   imprisonment.          On   appeal,        he    argues     his     sentence   is

procedurally          unreasonable        because           the     district          court

misunderstood its authority to depart from the Guidelines range,

and   failed     to    provide   sufficient          explanation        for    its   chosen

sentence.        He    further    argues       his    sentence      is      substantively

unreasonable,         alleging   no   empirical           support   for       the    illegal

reentry Guideline and the Guideline’s severity does not relate

rationally to the offense levels established for other offenses.

We vacate and remand for resentencing.



                                           I.

            In    the       presentence    report          (“PSR”),      the    probation

officer assigned Myers a base offense level of eight.                                  U.S.

Sentencing Guidelines Manual § 2L1.2(a) (2009).                          Sixteen levels

were added because at least one of Myers’ prior conviction was

for a drug trafficking offense for which the sentence imposed

exceeded thirteen months.             See USSG § 2L1.2(b)(1)(A).                      After

application      of     a    three-level        adjustment        for    acceptance       of

responsibility, Myers’ resulting offense level was twenty-one.

                                           2
This      offense    level    and        a    criminal         history      category        of     V

generated an advisory Guidelines range of seventy to eighty-

seven months’ imprisonment.

             Myers filed a sentencing memorandum in which he stated

he   had    no    objections        to       the       PSR    and    stipulated     that         the

Guidelines range had been properly calculated.                              However, based

on various 18 U.S.C. § 3553(a) factors, he requested a “sentence

no greater than the low end of the [G]uideline[s] range.”                                        The

Government       responded     and,      citing          to   the    18   U.S.C.    § 3553(a)

(2006)     factors,    requested         a    top-of-the-Guidelines               sentence        of

eighty-seven months’ imprisonment.

             At     sentencing,          defense             counsel      again    noted          no

objections to the PSR and asked the court “to impose a sentence

no greater than 70 months.”                   Counsel added, “I know that that’s

the low end of the recommended or Advisory Guidelines, but I

still think it is appropriate.”                         Counsel then proffered “three

additional        factors”     in     support            of    his     written     sentencing

memorandum.         First, he clarified that he was not objecting to

the sixteen-level enhancement as it was appropriately applied

under the Guidelines.           However, he argued “there does not seem

to   be    any    empirical    data          or    study      conducted     by    the   .    .     .

Sentencing Commission that would tie or directly relate to th[e]

16-level increase.”           While acknowledging that it was an argument

that the district court had heard and considered before, defense

                                                   3
counsel suggested it was a factor the district court could take

into consideration.              Second, he maintained that the enhancement

constituted double-counting as his prior convictions had already

been       taken    into    consideration          in    establishing      his     criminal

history       category.          Again,   he       acknowledged       that    the    Fourth

Circuit has held that the enhancement is not considered double-

counting, but urged the district court to at least consider it

as a factor in determining an appropriate sentence.                                On these

grounds,      he    urged    the      district      court     to   fashion     a    sentence

“lower than the Advisory Guidelines Range.”                        Third, he urged the

district      court    to    consider      that      the     Fourth    Circuit      had   not

adopted      a     fast-tracking       system,       which     affords    defendants       in

border      states    up    to    a   four-level        departure. 1         Additionally,

defense counsel cited to various § 3553(a) factors, noting Myers

was not in need of educational rehabilitative services as he is

a skilled carpenter, that the need to promote respect for the

law requires avoiding sentence disparities, and that Myers will

be   deported        upon   release.          The       Government,      observing        that

defense       counsel       raised      the        arguments       pertaining       to    the

       1
       “Fast-tracking refers to a procedure that originated in
states along the United States-Mexico border, where district
courts experienced high caseloads as a result of immigration
violations.”   United States v. Perez-Pena, 453 F.3d 236, 238
(4th Cir. 2006). In conformity with that practice, prosecutors
seek to obtain pre-indictment pleas by offering to move for a
downward departure under USSG § 5K3.1.



                                               4
enhancement for the first time at sentencing, responded that

Myers’    arguments          against     application       of    the     sixteen-level

enhancement have repeatedly been rejected by the Fourth Circuit.

The Government added that the fast-tracking disparity argument

too has been rejected by the Fourth Circuit and that, in any

event, Myers would not qualify for the motion.

            The      district        court    rejected    Myers’      arguments    under

§ 3553(a)       as    meritless.             With    respect    to     his    arguments

concerning      the    sixteen-level          enhancement,      the    district    court

stated:

          The bottom line is that this Offense Level of 21
     is fully supported. The Fourth Circuit is clear about
     these arguments of double counting and that 16-point
     enhancement.    And again, I’m sitting here in the
     Fourth Circuit and I am not the King of the World. I
     cannot undo what they have done.    Because I, unlike
     Mr. Myers, abide by the law.

          Now, so all of these objections or requests for
     some kind of lenient treatment flowing from these
     arguments will be rejected by the Court.

Accordingly,         the    district     court      sentenced    Myers       within    the

Guidelines range to eighty-four months’ imprisonment.



                                             II.

            A    sentence       is    reviewed      for   reasonableness       under    an

abuse of discretion standard.                  Gall v. United States, 552 U.S.

38, 51 (2007).             This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                              Id.;

                                              5
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                          A

sentence imposed within the properly calculated Guidelines range

is presumed reasonable by this Court.                United States v. Mendoza-

Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).

            In     determining      the   procedural      reasonableness        of    a

sentence,    we     consider       whether    the    district    court       properly

calculated       the     defendant’s      Guidelines      range,    treated          the

Guidelines    as       advisory,    considered      the   18   U.S.C.    §    3553(a)

(2006) factors, analyzed any arguments presented by the parties,

and sufficiently explained the selected sentence.                        Gall, 552

U.S. at 51.        “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).

Where, as here, the district court imposes 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).                       However,

that explanation must be sufficient to allow for “meaningful

appellate review” such that the appellate court need “not guess

at the district court’s rationale.”                 Carter, 564 F.3d at 329-30

(internal quotation marks omitted).



                                          6
               Here, Myers does not dispute that the district court

properly    calculated       his    Guidelines        range      under       the    advisory

Guidelines.          Rather, he argues that the district court, relying

on cases prior to the Supreme Court’s decision in Kimbrough v.

United States, 552 U.S. 85 (2007), believed it did not have the

authority to disagree with the Commission’s policy behind the

sixteen-level enhancement and impose a lower sentence on that

basis.

               The    standard     of     review      this      court    employs       when

reviewing       the    procedural       adequacy      of    a    sentence      on    appeal

depends on whether the error was asserted in the district court.

If the party properly preserved its claim, this court reviews

for    reasonableness       under       an    abuse    of       discretion         standard,

reversing “unless . . . the error was harmless.”                         Lynn, 592 F.3d

at 576, 578.          The Government argues that Myers’ challenge to the

procedural reasonableness of his sentence should be reviewed for

plain error because he specifically requested a sentence within

the    advisory       Guidelines    range.         Our      review      of    the    record

discloses that defense counsel did in fact argue that the merit

of    Myers’    challenge     to    the      policy    behind      the       sixteen-level

enhancement was “reason enough that the Court can go below the

Guidelines Range.”          We therefore conclude that Myers preserved

his claim.           See Lynn, 592 F.3d at 578 (“By drawing arguments

from § 3553 for a sentence different than the one ultimately

                                             7
imposed,     an     aggrieved      party    sufficiently             alerts     the    district

court   of        its     responsibility            to    render       an     individualized

explanation addressing those arguments, and thus preserves its

claim.”); cf. United States v. Hernandez, 603 F.3d 267, 270 (4th

Cir. 2010) (reviewing claim of procedural unreasonableness for

plain   error       because      defendant          did   not       argue   for    a   sentence

different from the sentence that he received).

              It is now well established that a court may consider

policy objections to the Sentencing Guidelines.                               See Kimbrough,

552 U.S. at 101-07.             In Kimbrough, the Supreme Court held that a

district court may deviate from the advisory Guidelines range

for   crack       cocaine      offenses     based         on    a    conclusion        that   the

disparity between ranges for crack and powder cocaine results in

a   sentence       greater      than    necessary         to    achieve      the    sentencing

goals of § 3553(a).            552 U.S. at 91.

              In        his    sentencing       memorandum,            Myers       posited     no

objections         to    the    calculation         of    the       Guidelines      range;    at

sentencing, defense counsel again noted no objections to the

Guidelines range.              It is clear, however, that defense counsel

sought to advance policy arguments mitigating application of the

enhancement which the court in its discretion, under Kimbrough,

could   have        espoused       in     fashioning           Myers’       sentence.         In

responding to Myers’ argument, the district court stated that

the   Fourth       Circuit      was     clear       about      arguments       regarding      the

                                                8
sixteen-level        enhancement.             Specifically,         the   district   court

judge pronounced he “could not undo what the Fourth Circuit has

done.”       The     record     does    not        conclusively      indicate     that   the

district court was unaware of its authority to impose a variance

sentence     based    on    a   disagreement          with    the    policy     behind   the

illegal reentry Guideline.                Rather, in our view, the district

court simply misconstrued Myers’ argument as a direct challenge

to    the     application        of     the         sixteen-level         enhancement     in

establishing Myers’ Guidelines range.                      However, we conclude the

record supports Myers’ argument of procedural error with respect

to his policy arguments for a downward variance.

              Under a harmless error standard, the Government bears

the burden of establishing that the error did not affect Myers’

substantial rights.             United States v. Robinson, 460 F.3d 550,

557 (4th Cir. 2006).               Specifically, the Government “may avoid

reversal only if it demonstrates that the error did not have a

substantial and injurious effect or influence on the result and

we    can    say   with     fair      assurance        that   the     district     court’s

explicit consideration of the defendant’s arguments would not

have affected the sentence imposed.”                      United States v. Boulware,

604   F.3d    832,    838     (4th     Cir.    2010)      (alterations      and   internal

quotation     marks     omitted).             In    its   response,       the   Government

states, “If the defendant had asked for a sentence outside the

advisory guideline range, then perhaps the record might support

                                               9
the reading that the defendant tries to give it, but here the

defendant made his challenge to the immigration guidelines while

asking for a sentence within the guideline range.”

            Because   we    review   the   procedural     reasonableness     of

Myer’s sentence for harmless error, Myers properly raised below

policy arguments in support of a downward variance, the district

court did not expressly adopt or reject those arguments instead

noting it was bound by Fourth Circuit law, and the Government

has   not   shown   harmless   error,   we    vacate    Myers’   judgment    and

remand for resentencing. 2      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




      2
       Of course, by this disposition, we indicate no opinion as
to whether the eighty-four month sentence was substantively
reasonable.



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