                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5221


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JULIUS NESBITT, a/k/a Butch,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:08-cr-01153-DCN-1)


Submitted:   January 31, 2012             Decided:   February 6, 2012


Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Peter T. Phillips, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Julius    Nesbitt      appeals       his       conviction      and       151-month

sentence of one count of conspiracy to possess with intent to

distribute and distribute oxycodone, in violation of 21 U.S.C.

§ 846 (2006); two counts of possession with intent to distribute

and    distribution         of    oxycodone,          in    violation      of        21    U.S.C.A.

§ 841(a)(1),         (b)(1)(C)          (West        Supp.       2011);        one        count    of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2) (2006); and one count of causing

the Coast Guard to attempt to save a life and property when no

help       was   needed,     in   violation          of    14    U.S.C.    §    88(c)       (2006).

Counsel for Nesbitt filed a brief in accordance with Anders v.

California,        386     U.S.    738    (1967),          stating    that      there       are     no

meritorious         issues       for    appeal,       but       questioning          whether      the

district court erred in denying Nesbitt’s motions to dismiss and

for a Franks * hearing.                  Nesbitt filed a pro se supplemental

brief,      arguing       that    the    district         court    erred       in    denying       his

motions to dismiss on speedy trial grounds and for a Franks

hearing      and    in    permitting       the       Government      to    use       visual       aids

during its closing argument.

                 Upon review of the record, we directed supplemental

briefing on the issues of whether the district court erred in

       *
           Franks v. Delaware, 438 U.S. 154 (1978).



                                                 2
denying Nesbitt’s motion to dismiss on speedy trial grounds and

whether the district court abused its discretion in failing to

adequately     explain      the    sentence    imposed.       We   now   affirm

Nesbitt’s convictions, but we vacate the sentence and remand for

resentencing.

             We review a district court’s factual findings in its

ruling on a motion to dismiss for clear error and its legal

determinations de novo.           United States v. Kellam, 568 F.3d 125,

132 (4th Cir. 2009).              The Speedy Trial Act requires that a

defendant’s trial “commence within seventy days from the filing

date . . . of the information or indictment, or from the date

the   defendant   has    appeared     before   a   judicial   officer    of    the

court   in   which   such    charge    is   pending,   whichever    date      last

occurs.”     18 U.S.C. § 3161(c)(1) (2006).            The Act provides for

several excludable delays, including those resulting from the

grant of a continuance where the district court finds that “the

ends of justice served by taking such action outweigh the best

interest of the public and the defendant in a speedy trial”;

trial on other charges; and the filing of pretrial motions.                     18

U.S.C.A. § 3161(h)(1)(B), (D), (7)(A) (West Supp. 2011).                 If the

defendant’s trial does not begin within seventy days and the

delay is not excludable, the district court “shall” dismiss the

indictment with or without prejudice on motion of the defendant.

18 U.S.C. § 3162(a)(2); United States v. Henry, 538 F.3d 300,

                                        3
304 (4th Cir. 2008).            The defendant bears the burden of proving

a Speedy Trial Act violation.                   18 U.S.C. § 3162(a)(2); United

States v. O’Connor, 656 F.3d 630, 633 (7th Cir. 2011), petition

for    cert.    filed,     __    S.   Ct.   __    (U.S.       Nov.    29,     2011)   (No.

11-7625).

               We conclude that Nesbitt has not carried his burden of

establishing a Speedy Trial Act violation.                           The Speedy Trial

clock began running when Nesbitt appeared before a magistrate

judge for arraignment on April 8, 2009.                         The following day,

Nesbitt filed motions for disclosure of intent to use evidence

of other crimes, for leave to file additional motions, and for

discovery,       thereby        tolling     the     clock.            See     18   U.S.C.

§ 3161(h)(1)(D).         Nesbitt has not produced any evidence that

these motions were disposed of prior to November 10, 2009, when

he    filed    his   motion      to   suppres,      or   at    anytime        thereafter.

Therefore, we hold that Nesbitt has not carried his burden of

showing that any time ran on the clock between his pretrial

filings on April 9, 2009, and the beginning of jury selection on

August 10, 2010.           Accordingly, we conclude that the district

court did not err in denying Nesbitt’s motion to dismiss.

               We review de novo the legal determinations underlying

a district court’s denial of a Franks hearing and the district

court’s   factual     findings        for   clear    error.          United    States   v.

Allen, 631 F.3d 164, 171 (4th Cir. 2011).                      In order to obtain a

                                            4
Franks    hearing           to   attack       a    facially         sufficient          warrant

affidavit,      a     defendant        must    make     a    substantial          preliminary

showing that a false statement critical to a finding of probable

cause    was    included         in    the    warrant       affidavit       knowingly      and

intentionally or with reckless disregard for the truth.                                     See

Franks, 438 U.S. at 155-56; United States v. Clenney, 631 F.3d

658, 663 (4th Cir. 2011).                     “This showing must be more than

conclusory and should include affidavits or other evidence to

overcome the presumption of the warrant’s validity.”                                Clenney,

631   F.3d     at     663     (internal       quotation       marks     and       alterations

omitted).           Nesbitt      did    not    make     a    substantial          preliminary

showing    that      the     affiant      lied     or     omitted     information         with

reckless disregard for the truth.                   Accordingly, we conclude that

the district court did not err in denying Nesbitt’s motion for a

Franks hearing.

             We review a sentence imposed by a district court under

a   deferential       abuse      of    discretion       standard.          Gall    v.    United

States, 552 U.S. 38, 45 (2007); United States v. Lynn, 592 F.3d

572, 578-79 (4th Cir. 2010) (abuse of discretion standard of

review applicable when defendant properly preserves a claim of

sentencing error in district court “[b]y drawing arguments from

[18 U.S.C.] § 3553 [(2006)] for a sentence different than the

one   ultimately       imposed”).             We   must     begin     by    reviewing      the

sentence for significant procedural error, including such errors

                                               5
as     “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.”         Gall, 552 U.S. at 51.

              “When rendering a sentence, the district court ‘must

make     an     individualized           assessment            based     on      the   facts

presented.’”        United States v. Carter, 564 F.3d 325, 328 (4th

Cir.    2009)     (quoting      Gall,    552       U.S.   at    50).      Accordingly,       a

sentencing court must apply the relevant § 3553(a) factors to

the particular facts presented and must “state in open court”

the particular reasons that support its chosen sentence.                                   Id.

(internal       quotation      marks     omitted).          The   court’s        explanation

need not be exhaustive; it must be “sufficient ‘to satisfy the

appellate       court    that    the     district         court   has     considered       the

parties’ arguments and has a reasoned basis for exercising its

own     legal     decisionmaking          authority.’”             United        States     v.

Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v.

United States, 551 U.S. 338, 356 (2007) (alterations omitted)).

              When,      as     here,      the       district          court     imposes     a

within-Guidelines sentence, the district court may “provide a

less     extensive,       while        still       individualized,             explanation.”

United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009).

That    explanation,          however,    must      be    sufficient       to     allow    for

                                               6
“meaningful appellate review” such that we need “not guess at

the district court’s rationale.”                       Carter, 564 F.3d at 329-30

(internal quotation marks omitted).

                 We conclude that the district court erred in failing

to    provide      an     adequate      explanation        for    its     chosen    sentence.

During sentencing, the court merely stated that it “calculated

and    considered          the      advisory     Sentencing        Guidelines        and      the

relevant         statutory       sentencing     factors      contained       in    18     United

States Code 3553(a).”                  The district court chose not to accept

either      party’s       suggested      sentence,      instead         sentencing       in   the

middle      of    the     Guidelines      range,     but    it    provided     very       little

indication that it considered the parties’ arguments and had a

reasoned          basis       for      exercising      its        legal     decisionmaking

authority.

                 The    Government      argues      that    any    error     was    harmless.

When this court concludes that the district court committed a

procedural         error      in     sentencing,      “the       government        may     avoid

reversal only if it demonstrates 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       sentenced       imposed.”           United      States v.

Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (internal quotation

marks and alterations omitted).                     Here, because Nesbitt requested

                                                7
a sentence at the low end of the Guidelines range based on his

age   and   health   and   the    district        court    imposed     a    different

sentence without any indication that it had considered Nesbitt’s

argument, the Government’s conclusory argument is insufficient

to    establish    harmless      error.          Therefore,    we      must    vacate

Nesbitt’s sentence and remand for resentencing.

            In accordance with Anders, we have reviewed Nesbitt’s

pro se claims and the record in this case and find that there

are no other meritorious issues for review.                  We therefore affirm

the   convictions,     vacate     Nesbitt’s       sentence,     and     remand       for

resentencing.      We deny Nesbitt’s motion to consolidate briefs or

terminate counsel.

            This   court   requires       that    counsel     inform       Nesbitt    in

writing of the right to petition the Supreme Court of the United

States    for   further    review.        If     Nesbitt    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 Nesbitt.

            We dispense with oral argument because the facts and

legal    contentions   are    adequately         presented    in    the     materials




                                          8
before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                        AFFIRMED IN PART;
                                                         VACATED IN PART;
                                                             AND REMANDED




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