                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-4105


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CLARENCE SHAMBRY,

                  Defendant - Appellant.



                                No. 09-4111


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MAURICE L. TYLER,

                  Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Big Stone Gap.   James P. Jones, Chief
District Judge.    (2:08-cr-00018-jpj-pms-1; 2:08-cr-00019-jpj-
pms-1)


Submitted:    August 20, 2009              Decided:   September 11, 2009


Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellants.   Julia C. Dudley, United States Attorney, Jennifer
R. Bockhorst, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Clarence Shambry and Maurice L. Tyler (“Appellants”)

each pled guilty to one count of possession of contraband in a

federal prison, in violation of 18 U.S.C. § 1791(a)(2) (2006).

The   Appellants      each     received         a   sentence       of    thirty    months’

imprisonment.         On     appeal,         the    Appellants       argue    that      their

respective        sentences       are       procedurally     unreasonable,         as     the

district court did not adequately explain the basis for either

sentence.

            We     review     a    sentence         for    reasonableness         under    an

abuse-of-discretion standard.                  Gall v. United States, 552 U.S.

38, ___, 128 S. Ct. 586, 597 (2007).                          This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence.                 Id.

             In    determining          whether     a     sentence      is   procedurally

reasonable, we first assess whether the district court properly

calculated the defendant’s advisory guideline range.                                 Id. at

596-97.     We then determine whether the district court failed to

consider     the     18    U.S.C.       §     3553(a)     (2006)     factors      and     any

arguments presented by the parties, selected a sentence based on

“clearly erroneous facts,” or failed to sufficiently explain the

selected sentence.         Gall, 128 S. Ct. at 597.                Critically,

      the district court “must make an individualized
      assessment based on the facts presented.”     That is,
      the sentencing court must apply the relevant § 3553(a)

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       factors to the specific circumstances of the case
       before it. Such individualized treatment is necessary
       “to consider every convicted person as an individual
       and every case as a unique study in the human failings
       that sometimes mitigate, sometimes magnify, the crime
       and the punishment to ensue.”

United    States    v.    Carter,   564   F.3d      325,   328   (4th   Cir.    2009)

(quoting Gall, 128 S. Ct. at 598) (internal citations omitted).

Under Carter, the sentencing judge is required to “‘state in

open     court’     the    particular     reasons        supporting     its    chosen

sentence.”        Id. (quoting § 3553(c)).           In so doing, the district

court must “‘set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.’”

Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).

             Finally, assuming no procedural infirmity, we review

the    substantive       reasonableness       of   the   sentence,    “taking    into

account the ‘totality of the circumstances, including the extent

of any variance from the [g]uidelines range.’”                   United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 128 S.

Ct. at 597).       When reviewing the district court’s application of

the sentencing guidelines, this court reviews findings of fact

for clear error and questions of law de novo.                    United States v.

Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct.

2525 (2008).




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               It is clear from the record that the district court

correctly        calculated         the      Appellants’           respective       advisory

guidelines ranges, and the Appellants do not argue otherwise.

However,       despite      the    presumption         of    reasonableness         that     we

afford a within-guidelines sentence, Pauley, 511 F.3d at 473, we

conclude       that       the     Appellants’         sentences          are    procedurally

unreasonable.         The district court failed to state the reasons

supporting the Appellants’ sentences, or otherwise indicate that

it “considered the parties’ arguments and ha[d] a reasoned basis

for exercising [its] own legal decisionmaking authority.”                                 Rita,

551 U.S. at 356; see also Carter, 564 F.3d at 328.

               At     sentencing,         the        Appellants’          counsel     sought

sentences below the guidelines range based on the punishment

that     the     Appellants        received         from     prison       officials       while

incarcerated.               The     sentencing             judge     gave       one-sentence

explanations of the selected sentences, stating generally with

respect to each Appellant that he had consulted the § 3553(a)

factors and the advisory sentencing guidelines.                            Thus, the court

failed    to     indicate       what   factors        in    particular         supported    the

sentences, or the manner in which they did so.                                 In neglecting

this     step,      the     court      did      not    give        the     Appellants       the

individualized assessment required by Carter.                               Similarly, the

judge made no reference to the arguments made by the Appellants’

counsel    during      sentencing,        and       gave    no     indication      that    such

                                                5
arguments were considered.            Thus, because “the record here does

not   demonstrate    that      the   district      court   conducted     .   .     .    an

[individualized]        assessment    and     so   does    not    reveal     why       the

district court deemed the sentence it imposed appropriate, we

cannot hold the sentence procedurally reasonable.”                      Carter, 564

F.3d at 330 (footnote omitted).

              Accordingly,       while       we     affirm       the    Appellants’

convictions, we vacate the sentences imposed by the district

court   and    remand    for    resentencing.         We     dispense    with      oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and further argument

would not aid the decisional process.

                                                                 AFFIRMED IN PART,
                                                                  VACATED IN PART,
                                                                      AND REMANDED




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