                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4140


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

DAVID LEE COX,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:09-cr-00037-BO-1; 4:09-cr-00038-BO-1)


Submitted:   November 30, 2011             Decided:   January 4, 2012


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Slade C. Trabucco, THE TRABUCCO LAW FIRM, P.A., Raleigh, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                David   Lee      Cox    pled     guilty,       without    a    written      plea

agreement, to escaping from federal custody, in violation of 18

U.S.C. § 751(a) (2006).                 Cox later was convicted of conspiracy

to   distribute         less     than    five        hundred    grams     of     cocaine,     in

violation       of    21   U.S.C.        § 846       (2006),     and     three    counts      of

distribution of a quantity of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) (2006).              The district court sentenced Cox to a total

of 240 months’ imprisonment and imposed a $20,000 fine.

                Cox’s attorney submitted a brief in accordance with

Anders     v.    California,           386   U.S.     738   (1967),       questioning        the

district        court’s       drug-quantity           finding.           In    his    pro    se

supplemental         brief,      Cox    questioned       the    reasonableness         of    his

sentence,         specifically           challenging           the     district        court’s

explanation for his 240-month sentence and the court’s factual

findings in support of the $20,000 fine it imposed. ∗                            Upon review

of   the    record,        we    directed        supplemental        briefing        from   the

parties on whether the district court abused its discretion by

failing to adequately explain the reasons for the sentence or

fine it imposed.                We now affirm Cox’s convictions and active

      ∗
       In his pro se supplemental brief, Cox also questioned the
district court’s adherence to the requirements of Fed. R. Crim.
P. 32(i)(1)(A). Although the district court failed to comply
with Rule 32(i)(1)(A), we conclude that this error did not
affect Cox’s substantial rights.



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prison sentence, but we vacate the fine imposed and remand this

case     to    the     district        court     with   instructions            to   make   the

requisite factual findings under 18 U.S.C. § 3572(a) (2006).

               “We review . . . a drug quantity finding for clear

error.”       United States v. Kellam, 568 F.3d 125, 147 (4th Cir.

2009).        Under     the       clear      error   standard       of    review,     we    will

reverse       “only    if     .    .     .    left   with     the    definite        and    firm

conviction that a mistake has been committed.”                            United States v.

Jeffers, 570 F.3d 557, 570 (4th Cir. 2009) (internal quotation

marks omitted). Here, the district court did not clearly err in

determining the drug quantity attributable to Cox. It is well-

established that, at sentencing, the Government must prove drug

quantity by a preponderance of the evidence.                              United States v.

Milam, 443 F.3d 382, 386 (4th Cir. 2006).                       Thus, we reject Cox’s

legal argument that allowing the Government to prove a greater

drug quantity at sentencing than that found by the jury during

the    guilt    phase       of     the       trial   violated       his   Sixth      Amendment

rights.       Id. at 386-87.

               Next,    Cox       argues       his   prison     term      is    unreasonable

because the district court gave no explanation for its decision

to impose a 240-month sentence, which was a substantial downward

variance from his Guidelines range of 324 to 405 months. Because

Cox    argued    for     a    lower          sentence   than    the       one    imposed,     he

preserved this issue, and our review is for abuse of discretion.

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United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).                                     A

district court commits procedural error in sentencing when it

“fail[s] to adequately explain the chosen sentence-including an

explanation for any deviation from the Guidelines range.”                                  Gall

v. United States, 552 U.S. 38, 51 (2007).                        Although the district

court need not explicitly refer to 18 U.S.C. § 3553(a) (2006) or

discuss every factor on the record, United States v. Johnson,

445   F.3d         339,     345    (4th     Cir.    2006),        it       “must    make     an

individualized            assessment      based    on    the    facts       presented”      and

“apply     the          relevant      § 3553(a)         factors       to     the     specific

circumstances of the case before it.”                         United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and

emphasis omitted).

               In this case, the district court erred by providing no

explanation for the length of the active prison term it imposed

upon Cox.          We conclude, however, that the Government met its

burden    to       show    that    this    error    was       harmless.        Because      Cox

received       a    substantial        downward         variance,      we    conclude       the

district       court’s        inadequate      explanation           “did      not    have     a

substantial and injurious effect or influence on the result” of

the   sentencing          proceeding.       Lynn,       592    F.3d    at    585    (internal

quotation       marks       omitted).        Furthermore,         Cox’s      arguments      in

support    of       a     120-month     sentence        were    without      legal    merit,

allowing us to conclude with “fair assurance that the district

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court’s explicit consideration of those arguments would not have

affected the sentence imposed.”            Id. (internal quotation marks

omitted).

              Finally, Cox argues the district court erred when it

imposed, with no explanation, a $20,000 fine as part of his

sentence.      Because Cox failed to object in the district court to

the imposition or amount of the $20,000 fine, this court reviews

the issue for plain error.             Fed. R. Crim. P. 52(b); United

States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995).                         To

establish plain error, Cox must show that (1) an error occurred;

(2)    the    error   was   plain;   and   (3)    the    error   affected    his

substantial rights.         United States v. Olano, 507 U.S. 725, 732

(1993).      Even if these conditions are satisfied, this court may

exercise its discretion to notice the error only if the error

“seriously      affect[s]     the     fairness,     integrity       or    public

reputation of judicial proceedings.”              Id.    (internal quotation

marks omitted).

              A district court must consider several factors when

deciding whether to impose a fine.          See 18 U.S.C. § 3572(a).          We

have   long    held   “that   the    district    court    must    make    factual

findings with respect to applicable [§] 3572 factors, so that

there can be a basis from which to review whether the district

court abused its discretion in assessing a fine.”                United



                                       5
States v.       Walker,       39    F.3d     489,        492    (4th    Cir.   1994).          “In

determining the imposition and amount of a fine under § 3572(a),

the    district      court         must    consider,           among   other    things,       the

income,        financial       resources,       and        earning       capacity      of     the

defendant, as well as the burden that the fine will impose upon

the defendant and his dependents.”                             Castner, 50 F.3d at 1277

(internal quotation marks omitted).

               “A district court may satisfy these requirements if it

adopts a defendant’s presentence investigation report (PSR) that

contains adequate factual findings to allow effective appellate

review of the fine . . . .”                   Id.        Otherwise, the district court

must     set    forth        specifically       its        findings      of    fact     on     the

§ 3572(a) factors.              Walker, 39 F.3d at 492.                    The “[s]pecific

findings .       .   .   are       necessary        to    assure       effective      appellate

review    of     .   .   .   fines        imposed.”        Castner,      50    F.3d    at     1277

(internal quotation marks omitted).

               While     the       district     court          adopted    Cox’s       PSR,     the

factual findings in the report did not support the imposition of

the $20,000 fine.             To the contrary, the probation officer found

Cox was without the ability to pay a fine within the Guidelines

range and could only pay a reduced fine from his prison earnings

if he did not pay child support to his two minor children.                                   The




                                                6
district court did not address the probation officer’s findings

regarding Cox’s ability to pay or the § 3572(a) factors.                       Thus,

we conclude the district court committed error by failing to

follow § 3572(a) before imposing the fine and that the court’s

error was plain. We further conclude this error affected Cox’s

substantial rights as it led to the imposition of a fine greater

than he can pay and prevents him from meeting his obligations to

his dependents. We accordingly vacate the fine and remand this

case for further proceedings consistent with this opinion.

           In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal,

other than that related to the fine. We therefore affirm the

convictions, vacate the fine, remand for reconsideration of the

fine, and affirm the judgment in all other respects. We deny

Cox’s   pending    motions    for    the       appointment   of    new   counsel   on

appeal, but we suggest the district court consider appointing

new   counsel     for   Cox   upon   remand.        This   court    requires    that

current counsel inform Cox in writing of the right to petition

the Supreme Court of the United States for further review. If

Cox requests that such petition be filed, but counsel believes

that the petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Cox.



                                           7
            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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