                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4828


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VINCENT TYRONE RICKETTS,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:08-cr-00667-GRA-1)


Submitted:   August 18, 2010            Decided:   September 9, 2010


Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Kevin F. McDonald, Acting 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Unpublished opinions are not binding precedent in this circuit.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:

               Vincent Tyrone Ricketts pleaded guilty to one count of

possession with intent to distribute and distribution of 5 grams

or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B) (2006), and was sentenced to 70 months imprisonment.

Ricketts       appeals    his    sentence.          Because   the     district     court

committed procedural error during the sentencing proceeding, we

vacate Ricketts's sentence and remand for resentencing. *

               On   appeal,     Ricketts      challenges      only    the   procedural

reasonableness of his sentence, arguing that the district court

failed    to    address    his    non-frivolous        request       for    a   sentence

outside     the      advisory    Guidelines         range.      In    reviewing         any

sentence,       “whether      inside,        just   outside,     or    significantly

outside the Guidelines range,” we apply a “deferential abuse-of-

discretion standard.”            Gall v. United States, 552 U.S. 38, 41

(2007).     We first “ensure that the district court committed no

significant procedural error.”                Id. at 51. “If, and only if, we

find the sentence procedurally reasonable can we ‘consider the

substantive         reasonableness      of    the    sentence   imposed         under    an

abuse-of-discretion standard.’”                   United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).


     *
        Ricketts has not                challenged the integrity of his
conviction.    Accordingly,             that portion of the judgment is
affirmed.


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            Procedural errors may include “failing to adequately

explain the chosen sentence — ncluding an explanation for any

deviation from the Guidelines range.”                        Gall, 552 U.S. at 51.        A

district court must “make an individualized assessment based on

the   facts    presented,”             that   is,      the    court   must    “apply    the

relevant § 3553(a) factors to the specific circumstances of the

case before it.”               Carter, 564 F.3d at 328 (internal quotation

marks and emphasis omitted).                     Thus, the district court “must

state in open court the particular reasons supporting its chosen

sentence”     in       order    to     permit       proper    appellate    review.       Id.

(internal quotation marks omitted).                         In addition, “‘[w]here the

defendant . . . presents nonfrivolous reasons for imposing a

different      sentence’         than     that        set    forth    in   the     advisory

Guidelines,        a     district        judge       should     address      the   party’s

arguments and ‘explain why he has rejected those arguments.’”

Id. (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).

            A district court’s statement of reasons “need not be

elaborate or lengthy.”                  Id. at 330.           And, “a court need not

‘robotically           tick     through         § 3553(a)’s       every      subsection,’

particularly           when     imposing        a     within-Guidelines          sentence.”

United    States        v.     Lynn,    592     F.3d    572,    576   (4th    Cir.     2010)

(quoting United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006)).       However, a reviewing court likewise may not presume

that, “when imposing a sentence, the district court has silently

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adopted arguments presented by a party.”                            Carter, 564 F.3d at

329.

             In this case, after Ricketts pleaded guilty, a Pre-

Sentence     Report         (PSR)    was   prepared.           Pursuant          to   the    PSR,

Ricketts     had   an       offense    level       of   21    and    a   criminal      history

category of V, yielding an advisory Guidelines range of 70 to 87

months imprisonment.                Ricketts also faced a mandatory minimum

sentence     of    60   months'        imprisonment.            Prior       to    sentencing,

Ricketts     filed      a    sentencing      memorandum,            requesting        that    the

district court apply a 1:1 crack cocaine to powder cocaine ratio

in calculating his sentence and sentence him to the mandatory

minimum of 60 months' imprisonment.

             During         sentencing,        the      Government          recounted         the

findings of the PSR to the district court, and Ricketts agreed

with   the    Guidelines            calculation.              Immediately         after      this

recitation, the district court stated that it was “going along

with that recommendation.”                 The district court then sentenced

Ricketts to 70 months' imprisonment.                         The district court stated

that it had considered the U.S. Sentencing Guidelines Manual and

the 18 U.S.C. § 3553(a) (2006) factors in reaching its sentence.

Ricketts filed a timely appeal.

             We    agree        with       Ricketts          that     his        sentence      is

procedurally unreasonable.                 Ricketts provided a “nonfrivolous”

argument for a variance sentence — the crack cocaine to powder

                                               4
cocaine    ratio      —   and    the    district       court      did   not    address       the

argument,      or    even      permit       Ricketts    to     argue    for     a    sentence

outside     the      Guidelines        range,      although       we    have       previously

indicated that “the district court must allow both parties an

opportunity         to    argue        for      whatever        sentence        they        deem

appropriate.”         United States v. Abu Ali, 528 F.3d 210, 260 (4th

Cir.     2008)      (internal     quotation        marks     omitted).             While    the

district court did state that it was considering the § 3553(a)

factors, it provided no further explanation for the sentence.

               In Lynn, we remanded for resentencing after finding

“no     indication        that        the     district       court      considered           the

defendant’s nonfrivolous arguments prior to sentencing him,” and

the inadequacy of the district court’s statement of reasons was

illustrated by the fact that “the district court could have made

precisely the same statements in support of another sentence.”

Lynn,    592     F.3d     at    585     (internal      quotation        marks       omitted).

Likewise, there is no indication on the record that the district

court    considered       Ricketts’s          arguments      in    favor      of    a   below-

Guidelines       sentence,       and    the     district       court’s        statement      of

reasons show no individualized assessment of Ricketts’s case.

               The Government contends that, even assuming procedural

error, the error was harmless.                  In Lynn, we held that, in cases

involving procedural sentencing errors, “the party defending the

ruling     below      (here,      the       Government)        bears    the        burden    of

                                               5
demonstrating that the error was harmless, i.e. that it did not

have a ‘substantial and injurious effect or influence’ on the

result.”       Lynn, 592 F.3d at 585 (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)).                  As in Lynn, because the

district court did not even consider Ricketts’s arguments and

provided no individualized assessment or statement of reasons,

we   “cannot     say,   with   any   fair     assurance,     that     the   district

court’s explicit consideration of [Ricketts’s] arguments would

not have affected the sentence imposed.”               Id.

            For the foregoing reasons, while we affirm Ricketts’s

conviction, we vacate his sentence and remand for resentencing.

We   do   not,    of    course,   offer       any   view   on   the    substantive

reasonableness of the sentence imposed. 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




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