                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4225


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LEE EDWARD PHILLIPS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:13-cr-00117-F-1)


Argued:   January 28, 2015                      Decided:   March 3, 2015


Before TRAXLER,   Chief   Judge,   and   DIAZ    and   THACKER,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.        Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.    ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.       Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Lee Edward Phillips, a federal prisoner, pleaded guilty to

possessing     a    prohibited       object     in   prison,    see    18     U.S.C.    §

1791(a)(2),        and    was    sentenced      to   41     months’    imprisonment.

Phillips appeals, challenging the procedural reasonableness of

his   sentence      and    the   district       court’s     determination      that    he

qualified as a career offender.                  For the following reasons, we

affirm.

                                           I.

      Phillips      pleaded      guilty    to    federal     firearms       charges    in

Tennessee in 2003 and was sentenced to 188 months’ imprisonment.

In    2012,    while       incarcerated         at   the     Federal       Correctional

Institute     in    Butner,      North    Carolina,        Phillips    was    found    in

possession    of     a    handmade    weapon     fashioned     from    a     section   of

electrical conduit tied to a 12-inch rope woven from t-shirt

remnants.     Phillips was indicted on a single count of possessing

a weapon in prison and thereafter pleaded guilty.

      According to the presentence report (“PSR”), the offense of

conviction was a “crime of violence” qualifying Phillips as a

career offender.           U.S.S.G. § 4B1.1(a)(2).              With the enhanced

base-offense level and criminal history category flowing from

the career-offender designation, see id. § 4B1.1(b), the PSR

determined that Phillips’ advisory sentencing range under the

Guidelines was 37-46 months’ imprisonment.

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      At sentencing, counsel argued that mere possession of a

weapon was a passive, status offense that should not qualify as

a   crime   of   violence    for    career-offender       purposes.          Counsel

contended    that   Phillips,       who   had    been   diagnosed       with   colon

cancer in 2012 and had part of his colon removed in 2013, had

been physically and sexually assaulted previously and that his

struggle with colon cancer left him more vulnerable.                     According

to counsel, Phillips possessed the weapon for self-defense only

and would not have used it to commit a crime.               Relying on United

States v. Mobley, 687 F.3d 625, 631-32 (4th Cir. 2012), the

court overruled Phillips’ career-offender objection.

      Counsel for Phillips then sought a downward variance to 27

months’ imprisonment, again arguing that Phillips’ vulnerability

was a mitigating factor in his possession of a weapon.                       Counsel

explained that Phillips’ surgery occurred six months after he

arrived at Butner and that he had lost between 40 and 50 pounds,

rendering     him   significantly         more    susceptible      to    a     prison

assault.      Counsel also suggested that the lower sentence was

appropriate      because    Phillips      had    been   placed   in     seclusion.

Finally, counsel acknowledged Phillips’ prior criminal conduct,

but   suggested      that     the     lower      sentence    was        nonetheless

appropriate given the circumstances.




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      In response, the government emphasized that Phillips had an

extensive criminal history and had previously been cited for

possessing a weapon in prison, along with numerous other prison

infractions.      In light of this history, the government asked for

a   sentence   near       the   high   end       of   the   career-offender    range.

      After offering Phillips an opportunity to speak, the court

made the following statement:

      The court finds the basis for the findings contained
      in the [PSR] to be credible and reliable and,
      therefore, the court adopts those findings.

           Based on those findings, the court has calculated
      the imprisonment range prescribed by the advisory
      Sentencing Guidelines.

           The court has considered that range as well as
      other relevant factors set forth in the advisory
      Guidelines and those set forth in 18 United States
      Code section 3553(a).

           Pursuant to the Sentencing Reform Act of 1984,
      it’s the judgment of the court that the defendant is
      hereby committed to the custody of the Bureau of
      Prisons to be imprisoned for a term of 41 months.

            The term of imprisonment imposed by this judgment
      shall     run   consecutively   to    the   defendant’s
      imprisonment under any previous state or federal
      sentence.

J.A. 39-40.       This appeal followed.

                                             II.

      Phillips first challenges the procedural reasonableness of

his   sentence.       A    sentence     is    procedurally      reasonable    if    the

court    properly    calculates        the    defendant’s      advisory   Guidelines

range,    gives     the     parties     an       opportunity    to   argue    for    an

                                             5
appropriate sentence, considers the 18 U.S.C. § 3553(a) factors,

does    not     rely    on     clearly     erroneous          facts,       and      sufficiently

explains the selected sentence.                       See Gall v. United States, 552

U.S. 38, 49-51 (2007).                  In this case, Phillips contends his

sentence is procedurally unreasonable because the district court

failed    to    address       his    nonfrivolous            arguments         in     favor      of   a

downward       variance      and    failed       to    explain      why    it       had    rejected

them.

       As this court has explained, “[r]egardless 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).                           The explanation must be

sufficient to allow for “meaningful appellate review,” such that

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

rationale.”       Id. at 329, 330 (internal quotation marks omitted).

       Based on our review of the sentencing transcript, we agree

that     the     district       court’s         explanation           in       this       case    was

insufficient, thereby rendering Phillips’ sentence procedurally

unreasonable.          Because Phillips properly preserved this issue

for review, see United States v. Lynn, 592 F.3d 572, 578 (4th

Cir. 2010), we must reverse unless we conclude that the error

was harmless, see id. at 576.                   The government may establish that

                                                 6
such a procedural error was harmless, and thus avoid remand, by

showing “that the error did not have a substantial and injurious

effect or influence on the result [such that] 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)     (internal      quotation          marks        and     alterations

omitted).

       Applying       this     standard       to      the     facts    of     this       case,    we

conclude that the government has satisfied its burden of showing

that the district court’s procedural error was harmless.                                         The

district          court’s    adoption       of       Phillips’        PSR,     which       recited

Phillips’         criminal     history,       various         prison     infractions,            and

medical         condition,     establishes           the     court’s     familiarity          with

Phillips’ background and personal circumstances as relevant to

the    §     3553(a)       sentencing       factors.           Further,        the       arguments

Phillips advanced in favor of a below-Guidelines sentence were

less       than      persuasive,          particularly          when     juxtaposed           with

Phillips’         significant       criminal         record    and    history        of    violent

conduct while in prison.                    See id. at 839–40 (explaining that

comparative         weakness       of   a   defendant’s         arguments          for    a   lower

sentence is one reason to decline to remand a case for further

explanation).             Finally, the sentencing transcript reveals little

room       to     doubt     that    the     district         court     considered         defense

                                                 7
counsel’s arguments in favor of a downward variance, as this was

one of two issues contested at sentencing, and the court imposed

sentence    immediately          after    hearing    the     attorneys’      arguments.

See id. at 839 (“[E]ven if the district court erred by not

adequately          explaining     its    reasons     for    rejecting       Boulware’s

argument for a below-guidelines sentence, we are quite confident

that the district court undertook that analysis and considered

Boulware’s argument.”).                 We are thus persuaded that, in this

case,    any        shortcoming     in    the     court’s    explanation      for   the

sentence       it     selected     is    harmless    and     that    remand    is   not

warranted.

                                           III.

       We turn now to Phillips’ argument that his conviction was

improperly characterized as a crime of violence and thus that he

was erroneously designated a career offender.                        As counsel for

Phillips acknowledges, however, this argument is foreclosed by

our decision in United States v. Mobley, where we held that a

conviction under 18 U.S.C. § 1791 for possessing a weapon in

prison was a crime of violence as defined by the career-offender

provisions of the Guidelines.                   See Mobley, 687 F.3d at 631-32.

Because one panel of this court may not overrule a decision of

another panel, see, e.g., McMellon v. United States, 387 F.3d

329,    332-33       (4th   Cir.   2004)    (en     banc),    we    reject    Phillips’



                                            8
argument and conclude that he was properly sentenced as a career

offender.

                              IV.

     Accordingly, for the foregoing reasons, we hereby affirm

Phillips’ sentence.

                                                        AFFIRMED




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