                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4250


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

AVERY DEMOND JETER,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:07-cr-00695-GRA-1)


Submitted:   December 20, 2010            Decided:   January 13, 2011


Before KING, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Benjamin   T.   Stepp,   Assistant   Federal   Public   Defender,
Greenville, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, Maxwell Cauthen, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Avery Demond Jeter pled guilty to being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1) (2006) (count

one),   and     possession         of    a     firearm      in    furtherance         of   a   drug

trafficking crime, 18 U.S.C. § 924(c)(1) (2006) (count three).

The district court initially imposed a sentence of 120 months on

count one and 262 months on count three, to run concurrently to

count one.          By joint motion of the parties, we remanded for

resentencing to correct the sentence because a sentence pursuant

to § 924(c) is required by statute to run consecutive to any

other   sentence.            At     resentencing,           the    district       court        again

imposed     a      total    sentence          of    262     months’       imprisonment,         but

imposed 120 months on count one and a consecutive 142 months on

count     three.           On     appeal,          Jeter    challenges          his    262-month

sentence, arguing the district court did not adequately explain

the reason for its chosen sentence.                        We affirm.

              This       court     reviews         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      us    to     ensure       that    the    district         court    committed       no

significant procedural error.                      United States v. Evans, 526 F.3d

155, 161 (4th Cir. 2008).                 Procedural errors include “failing to

calculate       (or      improperly          calculating)         the    Guidelines        range,

treating the Guidelines as mandatory, failing to consider the

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

based   on   clearly      erroneous    facts,        or    failing   to   adequately

explain the chosen sentence.”             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 citation 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; see

also United States v. Thompson, 595 F.3d 544, 546 (4th Cir.

2010) (“[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.”).

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              Jeter        asserts       that    the       district          court   committed

procedural error by failing to adequately explain the sentence

imposed.        Jeter’s arguments in the district court for a sentence

below the recommended Guidelines range preserved his claim of

procedural sentencing error on appeal.                            Id.        These arguments

“sufficiently alert[ed] the district court of its responsibility

to     render      an      individualized           explanation             addressing      those

arguments.”         Lynn, 592 F.3d at 578.                   Therefore, we review any

procedural sentencing error for abuse of discretion and reverse

unless the error was harmless.                         Id. at 579.             This standard

requires that the Government bear the burden of establishing

that    the     error      did     not    affect       Jeter’s      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).

              We    have     reviewed        the       record     and        agree   with      the

Government that any procedural sentencing error in this case was

harmless, as we have no doubt that the district court assessed

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Jeter’s arguments in applying the § 3553(a) factors.                       See id. at

839.     At the first two sentencing hearings, the district court

afforded Jeter an opportunity to allocute and defense counsel an

opportunity to argue for a sentence below the Guidelines range;

namely, overrepresentation of criminal history, Jeter’s troubled

childhood,       and    new     parental        responsibilities.       The      court

addressed in detail Jeter’s extensive criminal history, ensured

that all of his objections had been addressed, and stated that

it     had    considered       the   §     3553(a)    factors     before     imposing

sentence.       At resentencing, the court explicitly stated that it

had considered Jeter’s request for a downward variance based on

his work in prison.             Additionally, in imposing the same total

sentence as previously imposed, the court explicitly referenced

its consideration of several of the § 3553(a) factors.

               We are satisfied that the district court considered

the parties’ arguments and had a reasoned basis for the sentence

imposed, Boulware, 604 F.3d at 837, and that this sentence would

not be impacted by a more thorough explanation.                      See also Rita

v. United States, 551 U.S. 338, 359 (2007) (“Where . . . the

record       makes   clear    that   the    sentencing    judge     considered       the

evidence and arguments, we do not believe the law requires the

judge    to    write    more    extensively.”).         Accordingly,       we   affirm

Jeter’s sentence.            We dispense with oral argument because the

facts    and    legal    contentions       are    adequately    presented       in   the

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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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