                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4739


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DONALD HOWARD SMILEY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:14-cr-00044-GRA-1)


Submitted:   April 1, 2015                 Decided:   April 27, 2015


Before SHEDD, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, William J. Watkins, Jr., Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Donald Howard Smiley pled guilty to possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2012),

and the district court sentenced him to 78 months’ imprisonment,

a sentence at the bottom of the Sentencing Guidelines range.

Smiley appeals, challenging the procedural reasonableness of his

sentence.       He asserts that the district court erred by failing

to    explain    why     it     rejected    his   arguments         for     a     downward

variance.       Among other things, the Government contends that even

if the district court erred, the error is harmless. We affirm.

      A sentence is procedurally reasonable if the district court

properly calculates the defendant’s advisory Guidelines range,

gives the parties an opportunity to argue for an appropriate

sentence, considers the 18 U.S.C. § 3553(a) (2012) factors, and

sufficiently explains the selected sentence.                    See Gall v. United

States,   552     U.S.    38,    49-51     (2007).        As   we   have        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,” (internal quotation marks omitted), such that



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we need “not guess at the district court’s rationale,” id. at

329.

       Where, as here, the defendant properly preserves the issue

of   procedural       reasonableness       below,      this   court     must    reverse

unless the error is harmless.               United States v. Lynn, 592 F.3d

572, 576 (4th Cir. 2010).              The Government bears the burden of

“demonstrat[ing] that the error did not have a substantial and

injurious effect or influence on the result and 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)    (alterations       and     internal   quotation       marks

omitted).

       After reviewing the sentencing transcript, we conclude that

the district court’s explanation was insufficient to render the

sentence procedurally reasonable.                The court did not expressly

address      why    it     rejected   Smiley’s       arguments    for    a     downward

variance.       Such a failure constitutes procedural error.                      Lynn,

592 F.3d at 585.

       Nevertheless, the Government has satisfied its burden of

demonstrating        that    the   district     court’s       procedural       error    is

harmless.          The court adopted the findings of the presentence

report, establishing that it was familiar with Smiley’s history,

the nature and circumstances of the offense, and other details

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relevant    to     the    consideration        of     the      § 3553(a)     factors.

Additionally, Smiley’s arguments for a downward variance were

not persuasive.          See Boulware, 604 F.3d at 839-40 (explaining

that   comparative       weakness     of   defendant’s      arguments      for   lower

sentence is one reason to decline to remand case for further

explanation).      Moreover, the sentencing transcript reveals that

the district court must have considered Smiley’s arguments for a

downward variance; the variance was the only issue discussed at

sentencing,      and   the    court   imposed     sentence        immediately     after

hearing    defense      counsel’s     arguments     and     Smiley’s      allocution.

See id. at 839.         Thus, we are persuaded that, in this case, any

error in the district court’s explanation for the sentence it

imposed is harmless.

       Accordingly, we affirm the district court’s judgment.                        We

dispense    with       oral   argument      because      the      facts    and   legal

contentions      are   adequately      presented    in      the   materials      before

this court and argument would not aid the decisional process.



                                                                             AFFIRMED




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