                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4845


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RAUL MARTINEZ-MARTINEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00290-MR-1)


Submitted:   April 27, 2010                 Decided:   May 14, 2010


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished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


Claire J. Rauscher, Executive Director, Ross H. Richardson,
Steven Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth
Ray,   Assistant  United  States  Attorney,  Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Raul     Martinez-Martinez             pleaded      guilty     to     illegal

reentry of a deported alien who was an aggravated felon and

received an eighty-nine-month sentence.                       Counsel has filed an

Anders v. California, 386 U.S. 738 (1967), brief stating that he

has discerned no meritorious issues, but that the sentence may

be   procedurally        unreasonable             because     the    court       did      not

adequately explain its reasoning for the sentence, including the

refusal to grant a downward variance based on the community,

family, and cultural connections Martinez-Martinez established

in   the   United     States     and    the       danger    he    would    encounter       in

returning to his home country of El Salvador.                             We agree that

there is procedural error in determining the sentence and remand

for resentencing, but affirm the conviction.

             Counsel     asserts       that       the    district       court    did      not

adequately        consider       the      mitigating             issues     raised         by

Martinez-Martinez        before        imposing         sentence.         The      advisory

Sentencing Guidelines range was 77-96 months of imprisonment.

The district court heard from Martinez-Martinez’s counsel that

it   would   be     dangerous    for    Martinez-Martinez           to    return     to    El

Salvador and that he has attempted to be law abiding while in

the United States.             The court heard from the Government that

Martinez-Martinez        has    illegally          reentered      the     United    States

three other times, that his previous sentence for the same type

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of     offense        of     seventy-eight             months      did    not        deter

Martinez-Martinez          from    repeating      the    same     behavior,    and    that

Martinez-Martinez was arrested on this occasion after driving

while severely drunk and hitting three cars, and fleeing the

site of the accident.              After hearing argument by counsel and a

statement        by         Martinez-Martinez,              the       court      denied

Martinez-Martinez’s          motion     for       a    downward     variance    without

comment.      The court then pronounced its sentence and reasoning,

stating only that it had considered all the factors of 18 U.S.C.

§ 3553(a) (2006) in determining the sentence.

            After United States v. Booker, 543 U.S. 220 (2005),

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 the

court 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

§ 3553(a)     factors,       selecting        a       sentence    based   on    clearly

erroneous facts, or failing to adequately explain the chosen

sentence--including an explanation for any deviation from the

Guidelines range.”          Gall, 552 U.S. at 51.



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              “[I]f a party repeats on appeal a claim of procedural

sentencing error . . . which it has made before the district

court, we review 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 [the sentencing judge] 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)     (internal    citations      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.     When counsel requests a sentence at the bottom of the

Guidelines range or below, the error is preserved.                              Id. at 581.

In a post-Lynn case, United States v. Thompson, 595 F.3d 544

(4th Cir. 2010), we explained that "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."      595 F.3d at 546.

                                               4
            We      conclude     that,    under     Lynn,       Martinez-Martinez’s

arguments      in     the     district    court     preserved         his     claim     of

procedural sentencing error on appeal.                   Lynn, 592 F.3d at 581.

In particular, Martinez-Martinez’s counsel requested a downward

variance       from     the     Guidelines        range.          These        arguments

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

to    render     an    individualized           explanation      addressing           those

arguments.”         Id. at 578.       Therefore, we review any procedural

sentencing error for abuse of discretion and reverse unless the

error was harmless.           Id. at 579.

            The district court erred because it failed to explain

why it imposed the chosen sentence.                  See id. at 581-82.                 The

court stated, without discussion, that it took into account the

§ 3553 sentencing factors.               It did not address the mitigating

factors    raised      by     Martinez-Martinez,         nor    provide       any     other

reason for choosing the sentence imposed.                      Moreover, this court

cannot    presume      that     the   district     court       simply       adopted    the

Government’s arguments.           The error was not harmless because the

district court’s lack of explanation for imposing this condition

resulted in “a record insufficient to permit even routine review

for   substantive       reasonableness.”           Id.    at    582     (citation       and

quotation marks omitted).

            We      therefore    affirm     the   conviction,         but    vacate     the

sentence and remanding for resentencing.                        In accordance with

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Anders, we have reviewed the record in this case and have found

no other meritorious issues for appeal.     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 AND REMANDED IN PART




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