                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5103


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES A. HARDEE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:08-cr-01172-TLW-1)


Submitted:   August 31, 2010             Decided:   September 16, 2010


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, William E. Day, II, Assistant United States
Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Charles A. Hardee appeals the 108-month sentence he

received        after        pleading       guilty      to        possession          of      child

pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West

2000 & Supp. 2010).               In the district court, Hardee moved for a

sentence below the Guideline range, and the Government moved for

an   upward         departure.           Both   parties          presented       witnesses      in

support        of    their    motions.          The    district          court     denied     both

motions, then heard further argument for sentencing within the

applicable Guideline range.                 While Hardee argued for a sentence

at   the   low       end     of   this    range,      the    district         court    sentenced

Hardee at the top of that range, to 108 months’ imprisonment.

                On     appeal,      Hardee      argues           that     his    sentence        is

procedurally unreasonable because the district court failed to

provide an adequate explanation of the chosen sentence or to

individually tailor his sentence by applying the relevant 18

U.S.C.     §    3553(a)       (2006)     factors.           He    also    asserts      that    his

sentence       is    substantively         unreasonable.                Although      we   affirm

Hardee’s conviction, which he does not challenge on appeal, we

vacate     his       sentence      and     remand      to    the        district      court    for

resentencing.

                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

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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

consider     the    § 3553(a)         factors”    or     “failing      to    adequately

explain    the     chosen     sentence.”         Gall,   552    U.S.    at   51.       The

district court must make an individualized assessment based on

the facts presented by applying the relevant § 3553(a) factors

to the circumstances of the case.                Id. at 50-51.

             While the district court need not “robotically tick

through      § 3553(a)’s         every     subsection,”         particularly          when

imposing a within-Guidelines sentence, United States v. Johnson,

445 F.3d 339, 345 (4th Cir. 2006), the district judge “‘should

set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for

exercising    his       own   legal    decisionmaking      authority.’”            United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting

Rita v. United States, 551 U.S. 338, 356 (2007)).                              In cases

where, as here, the district court imposes a within-Guideline

sentence,    the     district     court    may     “provide     a    less    extensive,

while   still      individualized,        explanation.”          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

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rationale.”           Carter,     564    F.3d       at     329-30    (internal      quotation

marks omitted).

               It is undisputed that Hardee preserved his claim of

procedural error by moving for a sentence below the Guideline

range,    and,      when    this       motion   was        denied,    by    arguing      for    a

sentence at the low end of the Guideline range.                               United States

v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).                          Thus, we review the

district       court’s     consideration            of    Hardee’s    arguments         and   the

sufficiency of its explanation of the chosen sentence for abuse

of discretion.

               We     conclude     that     the          district     court       abused      its

discretion in sentencing Hardee.                     While the district court heard

extensive testimony from the parties at the sentencing hearing,

and     gave    the     parties        multiple          opportunities       to    argue      for

specific       sentences,        the    court       neither    specifically         addressed

these     arguments        nor    explained          its     reasons       for    the    chosen

sentence.       We will reverse this type of preserved error unless

we find that the error was harmless.                          Id. at 581.          “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 on

the result.”          Id. at 585 (internal quotation marks and citation

omitted).       The Government argues in its brief that the district

                                                4
court did not procedurally err in imposing sentence, but does

not   argue     in    the   alternative      that        any    alleged    error   was

harmless.       Having found procedural error, we do not find it

harmless.        We     cannot    conclude        that    the    district     court’s

“explicit consideration of [Hardee’s] arguments would not have

affected the sentence imposed.”             Id.

            Accordingly, although we affirm Hardee’s conviction,

which is unchallenged, we vacate his sentence and remand for

resentencing. ∗       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




      ∗
       Because we find Hardee’s sentence procedurally infirm, we
do not address its substantive reasonableness. See Carter, 564
F.3d at 330 n.4 (“Having found the sentence procedurally
unreasonable, . . . we cannot review the sentence for
substantive reasonableness.”); United States v. Stephens, 549
F.3d 459, 465 (4th Cir. 2008) (“If, and only if, the district
court’s sentencing decision is procedurally sound, we will then
consider [its substantive reasonableness].).    Accordingly, our
decision to vacate Hardee’s sentence should not be construed on
remand as evidencing any view as to the length of the sentence
that is substantively appropriate.



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