                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4927



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


CARLTON ARNEZ RILEY,

                  Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:06-cr-00098-jct)


Submitted:     May 30, 2008                 Decided:   June 27, 2008


Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Neil A. Horn, Roanoke, Virginia, for Appellant. John L. Brownlee,
United States Attorney, R. Andrew Bassford, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Carlton Arnez Riley pled guilty to one count of attempted

possession of cocaine with intent to distribute, 21 U.S.C. § 846

(2000),      and    was    sentenced    to   a    term   of   fifty-seven        months

imprisonment.        Riley appeals his sentence, contending that the

district court clearly erred in finding that he abused a position

of trust in a manner that significantly facilitated the commission

or concealment of the offense, U.S. Sentencing Guidelines Manual

§ 3B1.3 (2006).           For the reasons explained below, we vacate the

sentence and remand for resentencing.

              When    he    committed    the     offense,     Riley    was   a    state

probation officer in Henry County, Virginia. He was arrested after

he made a controlled purchase from a cooperating defendant, Calvin

Rayfield Moore.*          This court reviews de novo the district court’s

determination that the defendant held a position of trust under

§   3B1.3,    and    reviews    the     factual    findings     that   support      the

adjustment for clear error.             United States v. Ebersole, 411 F.3d

517, 535-36 (4th Cir. 2005); United States v. Caplinger, 339 F.3d

226, 235-36 (4th Cir. 2003).

              Riley concedes that he held a position of trust, but

contends that the government produced no evidence that his position

enabled him to commit or conceal the offense.                  Application Note 1

to § 3B1.3 states:         “For this adjustment to apply, the position of


      *
       Moore died before Riley was sentenced.

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public or private trust must have contributed in some significant

way to facilitating the commission or concealment of the offense

(e.g., by making the detection of the offense or the defendant’s

responsibility for the offense more difficult).”       The district

court accepted the probation officer’s speculation that Riley’s

position must have facilitated his commission and concealment of

the offense by giving him knowledge of the activities of law

enforcement officers in the county and allowing him to associate

with convicted criminals without arousing suspicion.      However, no

specific evidence was produced to show that Riley’s position

actually aided him in this way.        The government’s argument at

sentencing was focused entirely on the damage Riley’s actions

caused to the reputation of the criminal justice system in the

county, which is not a basis for giving the adjustment.    See United

States v. Wadena, 152 F.3d 831, 856-57 (8th Cir. 1998).

     A sentence is reviewed for reasonableness, applying an abuse

of discretion standard.   Gall v. United States, 128 S. Ct. 586, 597

(2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007).    The appellate court must first ensure that the

district court committed no procedural error, such as “failing to

calculate (or improperly calculating) the Guideline 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--including an


                               - 3 -
explanation for any deviation from the Guideline range.” Gall, 128

S. Ct. at 597.   Here, in the absence of evidence that Riley’s

position “contributed in some significant way to facilitating the

commission or concealment of the offense,” USSG § 3B1.3, comment.

(n.1), we cannot affirm the district court’s application of the

adjustment.

          We therefore vacate the sentence imposed by the district

court and remand for resentencing.    On remand, the district court

should not impose the § 3B1.3 adjustment unless it finds that the

necessary evidentiary support exists.       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.


                                               VACATED AND REMANDED




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