                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4363



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


HASSAN RICHARD MILLER, a/k/a Ernest Danielle
Smith,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:97-cr-726-CMC-1)


Submitted:   October 17, 2007          Decided:     February 15, 2008


Before TRAXLER, KING, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING, Columbia, South
Carolina, for Appellant.      Reginald I. Lloyd, United States
Attorney, Kevin F. McDonald, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Hassan Richard Miller pled guilty in 2003 to possession

with       intent    to   distribute    crack   cocaine   and   was   originally

sentenced to 262 months imprisonment.              Miller appealed, claiming

that his sentence violated United States v. Booker, 543 U.S. 220

(2005), and United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005).        This    court    agreed   and   vacated   Miller’s   sentence   for

resentencing consistent with those opinions.

               On remand, the district court conducted a resentencing

hearing and determined that Miller’s total offense level remained

at 36, which included a three-level enhancement for assaulting a

police officer under U.S. Sentencing Guidelines Manual (USSG)

§ 3A1.2(b) (2002).1           With a criminal history category IV, Miller’s

resulting guideline range remained at 262-327 months imprisonment.

After Miller’s attorney argued for a sentence below his original

262-month sentence, the district court stated:

       I agree it is a lengthy prison sentence. I considered
       that. I just don’t see any circumstances that warrant a
       different sentence than the sentence I imposed then. I
       gave him ten years concurrent, which is pretty generous.
       And even though it is a long sentence, although he has a
       long sentence, it could have been a lot longer.
            So, pursuant to the Sentencing Reform Act of 1984,
       it is the judgment of the court that [Miller] is hereby
       committed to the custody of the Bureau of Prisons to be


       1
      The “official victim” enhancement was amended, effective
November 1, 2004, providing now for a six-level, versus a three-
level, enhancement. See USSG App. C, Amend. 663; USSG § 3A1.2(c)
(2004).


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      imprisoned for a term of 262 months; 120 months of which
      is to run concurrently with the undischarged term of
      imprisonment that you are now serving under the
      provisions of 5G1.3C.

Miller noted a timely appeal.

             Miller first argues that the district court clearly erred

in finding that he committed an aggravated assault on a law

enforcement       officer      warranting         an    enhancement      under      USSG

§ 3A1.2(b). We review the district court’s factual finding on this

issue for clear error.          United States v. Harrison, 272 F.3d 220,

223 (4th Cir. 2001).

             At   the   time    of       Miller’s      original   sentencing,       USSG

§ 3A1.2(b) provided for a three-level enhancement if “during the

course of the offense or immediate flight therefrom, the defendant

. . . , knowing or having reasonable cause to believe that a person

was a law enforcement or corrections officer, assaulted such

officer in a manner creating a substantial risk of serious bodily

injury.”     Application Note 4(A) further provided that this section

“applies in circumstances tantamount to aggravated assault . . .

against a law enforcement officer.” The evidence established that,

at the time of his arrest, Miller threw a juice bottle (which he

had   just   purchased      from     a    convenience     store)    at   one   of    the

arresting officers and hit him in the head.                       Regardless of the

extent of the officer’s actual injury, we find that the district




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court did not clearly err in finding that the enhancement applied

because there was a substantial risk of serious injury.2

           Next,      Miller    argues       that   the   sentence     imposed    is

unreasonable because, inter alia, the district court failed to

consider the requisite factors enumerated in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2007).            We find insufficient evidence in the

record to show Miller is in error.

           This    court      reviews    a    district    court’s    sentence     for

reasonableness.       Hughes, 401 F.3d at 546-47.           “Consistent with the

remedial scheme set forth in Booker, a district court shall first

calculate (after making the appropriate findings of fact) the range

prescribed by the guidelines.”               Id. at 546.        Next, the district

court must consider this range in conjunction with other relevant

factors under the guidelines and § 3553(a) and impose a sentence.

Id.   The sentence must be “within the statutorily prescribed range

and . . . reasonable.”          Id. at 546-47 (citations omitted).               “[A]

sentence     within     the    proper        advisory     Guidelines    range     is

presumptively reasonable.” United States v. Johnson, 445 F.3d 339,

341 (4th Cir. 2006) (citations omitted); see also Rita v. United

States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of

rebuttable    presumption       of   reasonableness        to    within-guidelines


      2
      Indeed, while the evidence of the injuries suffered by the
officer who Miller assaulted is somewhat sparse--no doubt at least
in part because he had died prior to Miller’s sentencing--another
officer testified in a related proceeding that the victim officer
was left with a scar that remained visible long after the incident.

                                        - 4 -
sentence).          “[A] defendant can only rebut the presumption by

demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.”                 United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and

citation omitted), cert. denied, 127 S. Ct. 3044 (2007).

               A post-Booker sentence may be unreasonable for procedural

or   substantive        reasons.          “A    sentence      may    be   procedurally

unreasonable, for example, if the district court provides an

inadequate statement of reasons or fails to make a necessary

factual finding.”           United States v. Moreland, 437 F.3d 424, 434

(4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054

(2006).    While a district court must consider the various factors

listed    in    §    3553(a)     and    explain      its    sentence,     it    need   not

“robotically         tick     through    §     3553(a)’s     every    subsection”      or

“explicitly         discuss    every     §    3553(a)      factor    on   the    record.”

Johnson, 445 F.3d at 345.              “This is particularly the case when the

district court imposes a sentence within the applicable Guidelines

range.”    Id. (citation omitted).

               However, “a district court’s explanation should provide

some indication (1) that the court considered the § 3553(a) factors

with respect to the particular defendant; and (2) that it has also

considered the potentially meritorious arguments raised by both

parties    about      sentencing.”            Montes-Pineda,        445   F.3d    at   380

(citations omitted).           “[I]n determining whether there has been an


                                             - 5 -
adequate explanation, [the court does] not evaluate a court’s

sentencing statements in a vacuum.”            Id. at 381.     Rather, “[t]he

context surrounding a district court’s explanation may imbue it

with enough content for [the court] to evaluate both whether the

court considered the § 3553(a) factors and whether it did so

properly.”       Id.

               On the record before us, we are unable to discern whether

the district court considered the § 3553(a) factors or whether it

did so properly.          Accordingly, we vacate Miller’s sentence and

remand for resentencing in order to allow the district court to

articulate its reasons in imposing sentence.3                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




       3
      We note that the district court sentenced Miller prior to our
decisions in Johnson and Montes-Pineda, and thus did not have the
benefit of the guidance provided by those cases. We further note
that the district court is free on remand to impose the same
sentence or a different one; nothing in this opinion should be read
to suggest that we have formed any view regarding the appropriate
outcome of Miller’s resentencing.


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