                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4117


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN LAMONT JACKSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-00282-GRA-3)


Submitted:   September 28, 2010           Decided:   October 15, 2010


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kevin     Lamont     Jackson         appeals    from      his    57-month

sentence imposed pursuant to his guilty plea to a crack cocaine

conspiracy.       On appeal, he claims that the district court did

not   adequately      consider    the       statutory    sentencing      factors     and

failed to adequately explain the sentence imposed.                           We vacate

and remand for further proceedings.

             Jackson’s presentence report (“PSR”) determined that

the Guidelines range was 57 to 71 months.                         At his sentencing

hearing, neither party objected, and the court adopted the PSR’s

findings.       The    court     then       heard    from   the     parties    on    the

appropriate sentence.            Jackson’s counsel argued for a variance

sentence based upon (1) the crack/powder cocaine disparity and

(2)   Jackson’s      age   (he   was    a    teenager    when     he   committed     the

crime).     Counsel contended that a sentence within the range of

15 to 21 months 1 would “be quite a shock” to a twenty-year-old

with a Criminal History Category I who had never done any prison

time.      Counsel also argued that sentencing Jackson as if his

crime     involved    powder     cocaine         would   “satisfy      the   needs   of

society to punish.”




      1
       According to counsel, this is the range that would have
been calculated if Jackson’s offense involved powder rather than
crack cocaine.



                                             2
              The   court     questioned         Jackson    about    his   employment

history, noting that Jackson was unemployed between 2007 and

2009.      The court also questioned Jackson about his termination

from “PTI.” 2       The court appeared to believe that Jackson was

dropped      from   PTI   because      he    “started      selling     drugs   again.”

Jackson responded that he had not sold drugs since entering PTI

and that he was terminated because of the federal charge against

him.       The   Government      did   not    address      Jackson’s    arguments      or

propose an appropriate sentence.

              The court stated that it considered the “factors under

18 U.S.C. Section 3553(a) [2006]” and “considered the guidelines

as advisory only.”          The court concluded that “the purposes of

the statute are accomplished with a guidelines sentence.”                           The

court offered no further reasoning or findings and imposed a

sentence of 57 months.

              In evaluating the sentencing court’s explanation of a

selected      sentence,     we   have       consistently     held    that,     while    a

district court must consider the statutory factors and explain

its sentence, it need not explicitly discuss every factor on the

record, particularly when the court imposes a sentence within a

properly calculated Guidelines range.                 United States v. Johnson,

445 F.3d 339, 345 (4th Cir. 2006).                  But, at the same time, the

       2
           Apparently a state pre-trial intervention program.



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district court “must make an individualized assessment based on

the facts presented.”              Gall v. United States, 552 U.S. 38, 50

(2007).       Moreover,           the     district         court       must     state       the

individualized      reasons        that      justify       a     sentence,       even       when

sentencing a defendant within the Guidelines range.                                   Rita v.

United    States,     551        U.S.    338,     356-57       (2007).        The     reasons

articulated by the district court for a given sentence need not

be “couched in the precise language of § 3553(a),” so long as

the   “reasons      can     be     matched       to   a    factor       appropriate         for

consideration . . . and [are] clearly tied [to the defendant’s]

particular situation.”             United States v. Moulden, 478 F.3d 652,

658 (4th Cir. 2007).

            In United States v. Carter, 564 F.3d 325 (4th Cir.

2009), we held that, while the individualized assessment of each

defendant need not be elaborate or lengthy, it must provide a

rationale    tailored       to     the    particular           case    at     hand    and    be

adequate to permit appellate review.                      564 F.3d at 330.            Thus, a

recitation of the § 3553 factors and purposes is insufficient.

Likewise, a conclusory statement that a specific sentence is the

proper      one     does         not      satisfy          the        district        court’s

responsibilities.          Id.     at    328-29.          In     addition,       we     cannot

presume that the district court adopted the arguments of one of

the parties while imposing sentence; an appellate court may not

guess at the district court’s rationale.                       Id. at 329-30.

                                             4
               Here, the district court’s reasoning clearly violated

Carter.        The   court     merely    stated     that      the   purposes    of   the

statute were accomplished by a Guidelines sentence and provided

no   other     reasoning.          Moreover,    the     district      court    did   not

address the undisputed mitigating factors raised by Jackson, and

the record reflects that the court may have been confused as to

the reasons that Jackson’s PTI was terminated.

               The Government cites United States v. Hernandez, 603

F.3d 267 (4th Cir. 2010), to support its contention that the

district court’s reasoning was sufficient.                          In Hernandez, we

reviewed       Hernandez’s     claim     that   the     district      court    did   not

provide individualized reasoning for plain error, as Hernandez

had not objected below.                We then determined that the district

court’s statement that it had considered the § 3553 factors and

the advisory Guidelines range and concluded that the “purposes

of the statute are accomplished with a guideline sentence” was

sufficient.          603    F.3d   at   269.       We   held    that,    because     the

district court heard argument, considered the statutory factors,

and imposed the bottom-of-the-Guidelines sentence requested by

Hernandez,        Hernandez’s           sentence        was     not     procedurally

unreasonable.        Id. at 271-72.

               While the district court’s reasoning in Hernandez was

essentially identical to the district court’s reasoning in this

case,     we    find       Hernandez     distinguishable        in    two     important

                                           5
respects: (1) Jackson requested a sentence below the advisory

Guidelines range and, thus, his claim is reviewed for harmless

error rather than plain error, see United States v. Boulware,

604 F.3d 832, 838 (4th Cir. 2010), and (2) Jackson did not

receive the sentence he requested.                 Applying Carter, we conclude

that    the    district       court   abused     its    discretion   by    failing    to

provide individualized reasoning for the sentence imposed.

               Thus, Jackson’s sentence should be vacated unless we

determine that the error was harmless.                     United States v. Lynn,

592 F.3d 572, 581 (4th Cir. 2010).                        “To avoid reversal for

non-constitutional,             non-structural          errors     like     [the     one

presented here], the party defending the ruling below . . .

bears the burden of demonstrating that the error was harmless,

i.e. that it did not have a substantial and injurious effect or

influence on the result.”                Id. at 585.        The Government argues

only    briefly     and       conclusorily       that    any     alleged   error     was

harmless.       Accordingly, we conclude that the record does not

conclusively      show     that    “explicit      consideration      of    [Jackson’s]

arguments would not have affected the sentence imposed.”                      Id.

               As such, we vacate Jackson’s sentence and remand for

the district court to properly address Jackson’s arguments for a

lower    sentence       and    provide    individualized         reasoning    for    the

sentence imposed.             We dispense with oral argument because the

facts    and    legal     contentions      are    adequately      presented    in    the

                                            6
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                    VACATED AND REMANDED




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