                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4900


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CARLOS ADRIAN OLEA AVILA, a/k/a Eric Santiago Roman, a/k/a
Carlos Olea Avila,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00136-NCT-1)


Submitted:   May 27, 2015                 Decided:   December 23, 2015


Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Greensboro, North Carolina,
Robert A.J. Lang, Assistant United States Attorney, Alena K.
Baker, Third Year Law Student, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Carlos Adrian Olea Avila appeals the 70-month sentence the

district court imposed following his guilty plea to the charge

of   illegal     reentry     of    an   aggravated       felon,     in     violation    of

8 U.S.C. §§ 1326 (a) and (b)(2).                   On appeal, Avila argues that

the district court imposed a procedurally unreasonable sentence

by failing to explain his sentence and by failing to conduct an

individualized assessment of the facts to support his sentence.

Because the district court failed to state the basis for the

sentence imposed, we are constrained to conclude that we can

neither      uphold   the    sentence         as   procedurally       reasonable       nor

determine       its   substantive        reasonableness.             Accordingly,       we

vacate    the    judgment     of     the      district      court    and    remand     for

resentencing.



                                              I.

                                              A.

       Avila, a native of Mexico, entered the United States on

June   15,    2001.     In    2003      and    2004,   he    was    convicted    of    two

felonies in California Superior Court.                      The first, in December

2003, was for possession of methamphetamine.                          The second, in

September 2004, was for vehicle theft.                       Following the second

conviction, on September 24, 2004, Avila was deported to Mexico.



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       Avila, however, returned to the United States.                               In 2009,

after he was discovered, he was convicted of illegal reentry by

an aggravated felon and sentenced to 36 months’ imprisonment.

After completing his sentence for that crime, Avila was deported

to Mexico again.

       Less than three years later, Avila was discovered in the

United States again.             On April 7, 2014, Avila was arrested by

the Charlotte ICE/ERO Fugitive Operations Team.                            A federal grand

jury   subsequently     indicted       Avila       for       illegal        reentry    by    an

aggravated   felon,     in       violation    of       8    U.S.C.     §§    1326     (a)   and

(b)(2).   Avila pleaded guilty under a written plea agreement.

                                         B.

       In preparing the presentence report (“PSR”), the probation

officer    calculated        a     base-offense            level      of    8   under       the

U.S.S.G. §   2L1.2(a)        (2013),    with       a       16-level    increase       because

Avila had been previously deported following his 2003 felony

drug trafficking conviction.             Applying a 3-level reduction for

acceptance    of   responsibility,            the          probation        officer     found

Avila’s total offense level to be 21.                        With a criminal history

category of V, he faced a Guidelines range of 70 to 87 months.

The probation officer recommended a sentence at the low end of

the advisory Guidelines range.                 Neither party objected to the

PSR.



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      The district court adopted the PSR and calculated Avila’s

Guidelines      range    to    be    70    to    87     months.         The   government

requested      a   within-Guidelines         sentence.          Avila     requested      a

downward      variance,        arguing       that,      by     both      imposing      the

enhancement for illegal reentry and finding a criminal history

category      of    V,   the     PSR      double-counted          his    prior      felony

conviction.

      To Avila’s argument for a downward variance, the Government

responded that the three criminal history points were added for

the   prior    conviction      and     the   16-level        enhancement      was    given

because     Avila    once      again      reentered      the    country       illegally.

Therefore, the Government argued, there was no double-counting.

The Government stated, however, that it had no objection to a

70-month sentence.

      The     district    court      agreed      with    the      Government     on    the

double-counting argument and concluded that a downward variance

was unwarranted.          Although the district court also concluded

that a sentence at the low end of the Guidelines range was

appropriate, it neither explained its rationale for adopting a

within-Guidelines         sentence         nor        explicitly        mentioned      the

18 U.S.C. § 3553(a) factors.               The court then sentenced Avila to

70 months’ imprisonment.            This appeal followed.




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                                           II.

     In     his    appeal,      Avila      contends     that     his    sentence      is

procedurally unreasonable because (1) the district court failed

to sufficiently explain its sentencing decision, including the

application of the § 3553(a) factors, and (2) the district court

failed to conduct an individualized assessment in its sentencing

decision.

     In reviewing any sentence for reasonableness, “we apply a

‘deferential abuse-of-discretion standard.’”                     United States v.

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

United States, 552 U.S. 38, 41 (2007)).                  Our analysis follows a

two-step    approach.        We    first    must     “ensure    that    the    district

court committed no significant procedural error.”                             Gall, 552

U.S. at 51.       “If, and only if, we find the sentence procedurally

reasonable,”      we     then     proceed       to   “consider    the    substantive

reasonableness      of    the     sentence       imposed.”       Carter,      564   F.3d

at 328 (quoting Gall, 552 U.S. at 51).

     A district court commits procedural error by

     failing to calculate (or improperly calculating) the
     Guidelines    range,  treating    the   Guidelines   as
     mandatory,   failing  to   consider   the   [18  U.S.C]
     § 3553(a) factors, selecting a sentence based on
     clearly erroneous facts, or failing to adequately
     explain the chosen sentence--including an explanation
     for any deviation from the Guidelines range.




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Gall, 552 U.S. at 51.                “District courts are obligated to explain

their sentences, whether those sentences are within or beyond

the Guidelines range, although they should especially explain

sentences outside this range.”                       United States v. Montes-Pineda,

445    F.3d   375,           380   (4th   Cir.       2006)    (citation          and    alteration

omitted).           In        particular,       18    U.S.C.        § 3553(c)          requires   a

district court to “state in open court” the specific reasons

supporting the sentence given.                        In doing so, “[t]he sentencing

judge should 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.”

Rita v. United States, 551 U.S. 338, 356 (2007).                                  This not only

“allow[s] for meaningful appellate review”; it also “promote[s]

the perception of fair sentencing.”                         Gall, 552 U.S. at 50.

       Even    if        a     district     court       imposes       a        within-Guidelines

sentence,      “it       must      place    on       the     record       an    ‘individualized

assessment’ based on the particular facts of the case before

it.”     Carter, 564 F.3d at 330 (quoting Gall, 552 U.S. at 50)

(footnote omitted).                “This individualized assessment need not be

elaborate or lengthy, but it must provide a rationale tailored

to     the    particular           case    at        hand     and     adequate         to   permit

‘meaningful appellate review.’”                        Id. (quoting Gall, 552 U.S.

at 50).



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      In Carter, we concluded that the district court failed to

“justify    Carter's   sentence      with       an   individualized    rationale.”

Id. at 328-29 (emphasis omitted).                    Despite the fact that the

district court had “offered a variety of statements” about the

parties' arguments, had explained that it was “looking at the

four purposes in Section 3553(a)(2),” and had even summarized

those purposes, we concluded that the district court failed to

sufficiently      “explain   how    those       purposes    applied   to   Carter.”

Id.   at   329.     Thus,    we    found       Carter’s    sentence   unreasonable

because the “district court's asserted ‘reasons’ could apply to

any   sentence,     regardless       of        the   offense,   the   defendant's

personal background, or the defendant's criminal history.”                     Id.

(emphasis omitted).

      Here, the totality of the district court's statement to

Avila with respect to the sentence was as follows:

      I am in agreement with Ms. Hairston’s perspective with
      regard to how the counted criminal history points, as
      well as the reason for the aggravated felony existing,
      and will not vary downward, Mr. McCoppin, for that
      reason.     I am in agreement as well with the
      recommendation of the guidelines for a sentence at the
      low end of that advisory range, which is 70 months.

      Everyone does have a right to change their life. What
      happens here regardless of what it is, has nothing to
      do with the person’s decision and right to change
      whatever it is they do.    You had the opportunity to
      change any decision you would make after you were
      convicted in Federal District Court in Arizona about
      returning to the United States.



                                           7
     You know, I am blessed every day, we all are in this
     courtroom, to have the right to be in the United
     States, either by birth or through naturalization.
     Often we don’t understand just how important that is.
     We often take that for granted and don’t appreciate it
     properly, but that doesn’t mean that I can change the
     law or bend the law with regard for what it is for
     people returning as you have, now more than once when
     you’re not lawfully entitled to, without getting the
     appropriate permission from immigration officials.


J.A. 60-61.   The district court's commentary certainly manifests

its concern regarding the offense and its agreement with the

recommended Guidelines sentence.       It does not, however, include

individualized reasons for adopting a within-Guidelines sentence

or an explanation of the sentence actually imposed.

     The omission is compounded by the lack of an explanation of

how the § 3553(a) factors applied to the facts of Avila's case.

Although it is true that a district court need not “robotically

tick through § 3553(a)’s every subsection,” United States v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it must elaborate

enough on its application of the sentencing factors so as “to

allow   an    appellate   court       to   effectively   review   the

reasonableness of the sentence,” Montes-Pineda, 445 F.3d at 380

(citation omitted).    Here, the district court did not offer any

reasons to explain how the purposes of the § 3553(a) factors

applied to Avila.     Furthermore, the record is so bare that we

cannot decipher from it whether the district court considered



                                  8
the § 3553(a) factors at all, let alone perform any meaningful

appellate review.

     In sum, we cannot uphold Avila’s sentence as procedurally

reasonable because the district court did not adequately explain

the basis for the sentence imposed.          Accordingly, we vacate the

judgment of 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

this court, and argument would not aid the decisional process.



                                  III.

     For the foregoing reasons, we vacate the judgment of the

district court and remand for resentencing.

                                                     VACATED AND REMANDED




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