                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4476


UNITED STATES OF AMERICA,

                 Plaintiff – Appellant,

           v.

JERRY GASKILL,

                 Defendant – Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Terrence W. Boyle,
District Judge. (2:06-cr-00003-BO)


Argued:   December 4, 2008                 Decided:   March 20, 2009


Before KING and DUNCAN, Circuit Judges, and Rebecca Beach SMITH,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Banumathi Rangarajan, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant.   J. Matthew
Martin, MARTIN LAW FIRM, P.A., Asheville, North Carolina, for
Appellee.    ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellant.   Thomas C. Manning, MANNING & CROUCH, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Appellee Jerry Gaskill was convicted and sentenced in the

Eastern District of North Carolina for making materially false

statements in connection with a matter within the jurisdiction

of   the   Army   Corps   of   Engineers,   in   violation   of   18   U.S.C.

§ 1001.    At his sentencing hearing, the district court, over the

Government’s objection, granted Gaskill a downward variance from

the advisory Sentencing Guidelines range of fifteen to twenty-

one months, and imposed a sentence of three years’ probation

with six months’ home confinement.          The Government has appealed

Gaskill’s sentence, asserting that the court erred in granting

the downward variance.         As explained below, we agree with the

Government, and thus vacate and remand.



                                     I.

                                     A.

      On June 15, 2006, at the conclusion of a four-day trial, a

jury in Raleigh convicted Gaskill of a single § 1001 offense. 1

That charge, contained in Count Four of a four-count indictment,

specified that Gaskill had violated § 1001 by making (and aiding

      1
       Pursuant to § 1001(a)(2) of Title 18, it is unlawful for
any person to knowingly or willfully “make[] any materially
false, fictitious, or fraudulent statement or representation” in
connection with a matter “within the jurisdiction . . . of the
Government of the United States.”



                                      2
and abetting others in making) false, fictitious, and fraudulent

statements       to    the    Army    Corps      of    Engineers          (the    “Corps”),      by

submitting and causing to be submitted

     written statements which claimed that the creation of
     [a] 730 foot channel in the Currituck Sound, near
     Corolla, North Carolina, resulted by accident, when,
     in fact, he knew that the channel [had been]
     intentionally dredged, and dredged spoil intentionally
     discharged, through prop washing.

J.A. 20. 2       When Gaskill committed this criminal offense, he was

serving    as    the     Director      of    the      Ferry    Division          of     the   North

Carolina Department of Transportation (the “NCDOT”).                                    The trial

evidence, viewed in the light most favorable to the prosecution,

was essentially as spelled out below.

                                                1.

     In    2003,       the    NCDOT    was       directed      by        the    North    Carolina

legislature       to    establish      a    ferry       service          from    Currituck,      an

unincorporated community in Currituck County on the mainland of

North     Carolina,          eastwardly         across       the        Currituck       Sound    to

Corolla,     a    small        community         in    the     same        county       on    North

Carolina’s       Outer       Banks.        As    Director          of    the     NCDOT’s      Ferry

Division,       Gaskill       was     charged         with    establishing             the    ferry

service    by     May    2004.        Together         with    officials          of    Currituck


     2
       The indictment is found at J.A. 12-20. Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed
by the parties in this appeal.



                                                 3
County — which owned the land essential to establishing the

ferry service — Gaskill selected an area near the Whalehead Club

in Corolla for the proposed ferry terminal.                The part of the

Currituck Sound lying adjacent to the Whalehead Club is known as

the Whalehead Club Basin (the “Basin”).             In order to establish a

ferry    service   to   the   Corolla   terminal,    the   Basin   had    to   be

dredged.    Under applicable federal and state law, however, such

dredging    activity     could    be    legally   undertaken       only    after

issuance of permits by the Corps and the North Carolina Division

of Coastal Management (commonly referred to as “CAMA”). 3

     Gaskill was familiar with the permitting processes of the

Corps and CAMA, and wrote memoranda as early as 2002 to state

and county officials specifying that the proper permits were

essential to establishing the Corolla ferry terminal.                     As the

land owner, Currituck County was responsible for obtaining such

permits for the dredging of the Basin, but the county officials

doubted whether the permits would be issued by the state and

federal authorities because similar permits had been denied in

the past.




     3
        The North Carolina Division of Coastal Management is a
state agency commonly referred to as “CAMA,” a reference to the
state’s Coastal Area Management Act, which established the
agency.



                                        4
        In    February    2004,    Bill   Moore,       who    worked   directly      for

Gaskill as Superintendent of Dredge and Field Maintenance for

the Ferry Division, responded to Gaskill’s question “How are we

going to do this job?” by advising Gaskill that his people would

“push a barge in there, build a dock, and push it back out.”

J.A. 137.            In other words, Moore intended to move an NCDOT

vessel into the shallow waters of the Basin in a forward manner

in order to excavate the bottom of the waterway to create a

channel.        According to Moore, Gaskill “seemed okay” with this

suggestion.          Id. at 138.      Gaskill thereafter told another Ferry

Division employee, however, that “I didn’t order those guys to

do that dredging, but when Bill Moore made that statement, I

knew [Moore] probably or could do something like that, and I

didn’t stop him, so that makes me partly responsible.”                            Id. at

251.

       As of May 2004, no permit applications for dredging in the

Basin had been submitted by the County to either the Corps or

CAMA.        Accordingly, no permits had been issued by either agency.

On May 6 and 7, 2004, Moore nevertheless directed Ferry Division

employees       to    utilize   the   propellers    of       two   NCDOT   vessels    to

excavate a channel in the Basin for use by the ferry service.

The    Division       employees    then   used   the    NCDOT      vessels   to    “prop

wash” a channel in the Basin that was about four to five feet in



                                           5
depth, approximately 730 feet long by 30 feet wide, and included

a turning basin approximately 110 feet long by 50 feet wide. 4

     Moore drove to Gaskill’s office in Morehead City on May 7,

2004,       after    the    dredging      had       been   completed,      and    informed

Gaskill that he had directed Ferry Division employees to “kick

that channel out.”               J.A. 156.          Neither Gaskill nor any other

NCDOT personnel, however, informed the Corps or CAMA of those

events.        Nevertheless,        the     prop     washing    activity        was    almost

immediately reported to the federal and state authorities by an

anonymous       third      party.      As    a       result,    the     Corps    and    CAMA

initiated a joint federal-state investigation of the apparently

illegal dredging activity.                In responding to this investigation,

Gaskill made the false statements that were used to secure his

conviction          for    the   § 1001     offense.           These    statements       are

explained further below.

     First of all, the Corps and CAMA made inquiries to the

Ferry Division concerning the dredging activities in the Basin.

In   formulating          the    Division’s         response    to     those    inquiries,

Gaskill, as the Division’s Director, was instructed to conduct


        4
       “Prop washing” is the term used in Count Four of the
indictment to describe the dredging activity undertaken in the
Basin on May 6 and 7, 2004.     Generally, such dredging, also
called “kicking” or “pushing,” means “the use of the propellers
of a vessel to create a backwash which, in turn, dredges and
displaces material.” J.A. 14.



                                                6
an   internal   review     of   the    dredging     activity.             Gaskill   asked

Moore and other Division personnel to prepare written statements

detailing the events that took place in the Basin on May 6 and

7, 2004.     According to Moore, he was directed by Gaskill to “get

your    story   straight.”       J.A.    222.       On   June    23,       2004,     Moore

provided a letter to Gaskill, in which Moore falsely said that a

state      vessel   had     accidently        run   aground          in     the     Basin,

unintentionally disturbing the sediment on its bottom.

       On June 25, 2004, after receiving Moore’s letter, Gaskill

submitted his proposed response to the NCDOT’s Deputy Secretary

(the “Response”).         On July 2, 2004, that Response was forwarded,

together with Moore’s letter and other materials, to the Corps.

The Response falsely characterized the disturbance in the Basin

as unintentional and as having a limited environmental impact.

See J.A. 628 (representing to the Corps that “neither Mr. Moore

or   the    Ferry   Division     had    any     intention       of    deepening       the

channel, and any disturbance was unintentional”).                            The Corps,

upon receiving NCDOT’s submission, which included the Response,

continued to investigate the prop washing incident, seeking to

identify and possibly prosecute those responsible.

       On June 28, 2004, CAMA investigators issued a Notice of

Violation to the NCDOT, alleging that “[i]t appears NCDOT is

responsible for the unauthorized excavation of a channel” within

the Basin.      J.A. 402.       That same day, in a telephone interview

                                         7
with a CAMA investigator, Gaskill again falsely asserted that

the     NCDOT    had     not     intentionally           caused    an        environmental

disturbance       within       the    Basin.        On    July     6,    2004,       Gaskill

responded in writing to CAMA’s Notice of Violation, sending it a

letter — substantially identical to the Response submitted to

the Corps — again falsely maintaining that the prop washing

activity in the Basin was unintentional.

      Eventually, by notice to the Corps of August 23, 2004, the

NCDOT     reversed       its     position         concerning      the        prop    washing

incident,       and    accepted       full   responsibility            for    the    illegal

dredging activities in the Basin on May 6 and 7, 2004.                              J.A. 366

(specifying that “[the NCDOT] has investigated the activities of

the Ferry Division and has determined that they were responsible

for the unauthorized disturbance”).                   Because the Corps does not

perform restorative environmental work — relying instead on the

responsible      party     —    the    four-month        delay    in    identifying      the

responsible party resulted in a substantial amount of additional

environmental harm in the Currituck Sound that otherwise could

have been mitigated or avoided.

                                             2.

      Gaskill testified in his own defense at trial, asserting

that when the NCDOT submitted his Response to the Corps on July

2, 2004, he was unaware of the actual facts relating to the

Ferry Division’s prop washing activities in the Basin.                              He also

                                             8
said       that    he    was     unaware      of    those     facts      when    the    separate

exculpatory submission was made to CAMA on July 6, 2004.                                       In

fact,       Gaskill      told     the    jury      that     he    did    not    learn     of   the

intentional            nature    of     those      activities      until       mid-July      2004,

after his denials had been submitted to the Corps and CAMA.

Gaskill denied providing any false information concerning the

incident          to    the     Corps    or     CAMA,     and     asserted      that    he     had

contacted them immediately upon learning of the prop washing

activity.

       On cross-examination, however, the prosecution confronted

Gaskill       with       evidence        contradicting           his     direct     testimony,

including his admission to a federal investigator on August 26,

2004,       that       Moore    “came     clean”       with      him    on   June   25,      2004,

concerning the intentional prop washing in the Basin.                                   In view

of these multiple contradictions, and on the basis of the other

evidence, 5 the jury rejected Gaskill’s exculpatory version of the


       5
       At trial, the Government presented extensive evidence
showing that Gaskill was aware, prior to responding to the Corps
and CAMA, of the illegal nature of the dredging activities in
the Basin. Moore testified that he told Gaskill of the illegal
nature of the dredging on May 7, 2004.         Gaskill’s former
secretary testified that, at a May 11, 2004 meeting, Gaskill
stated that the Ferry Division had “made water” in Corolla.
Additionally, Charles Utz, another Division employee, testified
that sometime before the end of June 2004, Gaskill showed him
the CAMA Notice of Violation and an aerial photograph of the
prop washed area. This evidence convinced Utz that the dredging
could not have been an accident, but Gaskill nevertheless had
him prepare the July 6, 2004 letter to CAMA, asserting Gaskill’s
(Continued)
                                                   9
prop washing incident.             Gaskill was thus convicted of the § 1001

offense in Count Four of the indictment. 6

                                             B.

       After Gaskill’s trial and conviction, a presentence report

(the       “PSR”)     was   prepared,    and       it   recommended       a     Sentencing

Guidelines base offense level of 14.                      See USSG § 2J1.2 (2006).

The PSR also recommended a two-level enhancement for obstruction

of justice, predicated on Gaskill’s perjured trial testimony.

See id. § 3C1.1.            As stated in the PSR, the final offense level

of 16, combined with a criminal history category of I, yielded

an   advisory         sentencing    range     of     twenty-one      to    twenty-seven

months of imprisonment.

       In response to the PSR, Gaskill objected to an obstruction

of justice enhancement.              He also filed a “Motion for Variance

Sentence,”          asserting     that   a        sentence     below      the     advisory

Guidelines          range   was    appropriate.           In   the   motion,      Gaskill

alleged that he had neither sanctioned, participated in, nor

authorized      the     dredging;    that     he    had    been   “betrayed”       by   his




exculpatory version of the facts.     In all, eighteen witnesses
testified for the Government.        Gaskill himself, plus six
character witnesses, testified for the defense.
       6
       At trial, the court granted judgment of acquittal on two
related counts against Gaskill, and the jury acquitted him of
the remaining charge.



                                             10
subordinate, Moore; and that his criminal conduct — lying about

the dredging — was out of character and a singular lapse of

judgment, i.e., aberrant behavior.                     In its written sentencing

memorandum,    the     Government      objected          to      Gaskill’s       variance

request, asserted that an adjustment for obstruction of justice

was   appropriate,     and   requested          the    imposition      of   a    sentence

within the advisory Guidelines range.

      On   March     20,   2007,     the        district      court    conducted       the

sentencing    hearing. 7       The     court          first    sustained        Gaskill’s

objection to the PSR’s recommendation of a two-level enhancement

for obstruction of justice, concluding that the prosecution had

“not satisfied by a preponderance of the evidence that there was

an    obstruction    of    justice.”            J.A.    753. 8        The   court    then

determined    that    Gaskill’s      proper        advisory       sentencing        range,

predicated on a base offense level of 14 and a criminal history

category of I, was fifteen to twenty-one months.

      The district court then turned to Gaskill’s request for a

variance sentence, granting a downward variance and sentencing

him to three years’ probation with six months’ home confinement.


      7
       The transcript of the Sentencing Hearing is found at J.A.
734-68.
      8
       On appeal, the Government does not contend that the
sentencing court erred in rejecting the obstruction of justice
enhancement.



                                           11
The court also ordered Gaskill to perform 150 hours of community

service and pay a $5000 fine.                The Statement of Reasons filed by

the court with respect to the sentence did not explain the basis

for the variance sentence, nor did it select or emphasize any of

the 18 U.S.C. § 3553(a) factors as justifying such a variance.

Instead,         the    Statement       of    Reasons     provided   that      “[t]he

defendant’s motion for variance is granted by the court.”                         J.A.

798.

       The Government has timely noted this appeal, challenging

the    sentence        and   seeking    to    have   it   vacated.       We   possess

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 9



                                             II.

       We   review      a    sentence    imposed     by   a   district    court    for

reasonableness, applying an abuse of discretion standard.                          See

Gall v. United States, 128 S. Ct. 586, 597-98 (2007); United

States      v.    Pauley,     511   F.3d     468,    473-74   (4th   Cir.     2007). 10


       9
       Upon motion of the Government, the execution of Gaskill’s
sentence has been stayed pending resolution of this appeal.
       10
        Gaskill contends that his sentence can only be vacated if
it constitutes plain error, because the Government waived any
objection by failing to object following the imposition of the
variance sentence.     This contention is without merit.     As we
have   previously   recognized,  the   Government  preserves   its
objection to a variance sentence by “arguing for a sentence
within the Guidelines range throughout the sentencing hearing.”
United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006); see
(Continued)
                                             12
Generally, in order to determine whether a sentencing court has

abused its discretion, we apply a two-step analysis.                           Pauley,

511   F.3d    at     473.       First,       we       examine     the    sentence    for

“significant procedural errors,” and, second, we evaluate the

substance     of    the     sentence.        Id.          In   assessing    procedural

reasonableness, we examine whether the sentencing court properly

calculated     the     Guidelines       range,         whether      it   treated     the

Guidelines as mandatory, whether it considered the factors set

forth in 18 U.S.C. § 3553(a), and whether it selected a sentence

based on “clearly erroneous facts” or failed to sufficiently

explain the sentence.          See Gall, 128 S. Ct. at 597; Pauley, 511

F.3d at 473.

      If there are no procedural errors, we proceed to consider

the   substantive      reasonableness            of   a   sentence,      “taking    into

account the ‘totality of the circumstances including the extent

of any variance from the Guidelines range.’”                        Pauley, 511 F.3d

at 473 (quoting Gall, 128 S. Ct. at 597).                           In evaluating a

sentence     that    falls    within    a    properly          calculated   Guidelines

range, we may — but are not obliged to — apply a presumption of

reasonableness.       Gall, 128 S. Ct. at 597.                   Where, as here, the



also United States v. Clark, 434 F.3d 684, 686 n.1 (4th Cir.
2006). The Government, in its sentencing memorandum and at the
sentencing hearing, advocated for a sentence within the advisory
Guidelines range.



                                            13
sentence falls outside the advisory Guidelines range, we “may

consider      the     extent    of     the     deviation,             but       must     give    due

deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.”                                   Id.



                                             III.

      The    sentence        imposed   on     Gaskill            is   flawed       in    that     the

sentencing court procedurally erred by failing to fully consider

the   18    U.S.C.     § 3553(a)       factors       and          adequately       explain       the

sentence imposed, as required by § 3553(c).                                We explain further

below.

                                              A.

      The    Supreme     Court’s       decision          in       Gall     v.     United    States

identified two potential procedural problems with respect to a

sentencing         court’s     assessment          of        the      relevant          sentencing

factors.       See 128 S. Ct. 468, 596-97 (2007).                                 First, “after

giving      both     parties    an     opportunity               to   argue       for     whatever

sentence      they    deem     appropriate,”             a       sentencing       court     should

“consider all of the § 3553 factors to determine whether they

support     the     sentence     requested          by       a    party.”          Id.    at     596.

Significantly,         § 3553(a)       mandates          that         a     sentencing          court

consider the statute’s enumerated factors.                                See § 3553(a) (“The

court, in determining the particular sentence to be imposed,

shall      consider    [the     § 3553(a)          factors].”);             see    also     United

                                              14
States v. Battle, 499 F.3d 315, 323 (4th Cir. 2007) (“A district

court must . . . consider the § 3553(a) factors in every case,

regardless       of     whether      the    sentence    imposed       is    within     the

Guidelines range.”). 11             Nevertheless, a sentencing court need not

accord equal weight to each of the § 3553(a) factors, and it is

“quite      reasonable        for   the    sentencing    court   to    have    attached

great weight to a single factor.”                   United States v. Pauley, 511

F.3d     468,    476     (4th       Cir.    2007)    (internal    quotation          marks

omitted).

       Second,        after    determining        the   appropriate        sentence,    a

sentencing court “must adequately explain the chosen sentence to

       11
       Pursuant to § 3553(a) of Title 18, a sentencing court, in
determining the sentence to impose, shall consider:

       (1) the nature and circumstances of the offense and
       the history and characteristics of the defendant;

       (2) the need for the sentence to (A) reflect                            the
       seriousness of the offense, promote respect for                         the
       law, and provide just punishment for the offense,                       (B)
       afford adequate deterrence to criminal conduct,                         (C)
       protect the public from further crimes, and                             (D)
       provide the defendant with needed medical care                           or
       other correctional treatment;

       (3) the kinds of sentences available;

       (4) the kinds of sentence and the sentencing range
       established in the applicable guidelines;

       (5) any pertinent policy statements; and

       (6) the need to avoid unwarranted sentence disparities
       among defendants with similar records who have been
       found guilty of similar conduct.

                                             15
allow        for   meaningful    appellate       review    and     to    promote     the

perception of fair sentencing.”                  Gall, 128 S.Ct. at 597; see

also 18 U.S.C. § 3553(c) (directing sentencing court to “state

in open court the reasons for its imposition of the particular

sentence”).         As we have explained, however, a sentencing court

need         not    “robotically     tick        through        § 3553(a)’s         every

subsection,” United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006), and we have ourselves matched a sentencing court’s

reasons — when not couched in the precise language of § 3553(a)

— to an appropriate § 3553(a) factor, United States v. Moulden,

478 F.3d 652, 658 (4th Cir. 2007).                    Significantly, a sentencing

court’s “explanation of a variance sentence must be tied to the

factors set forth in § 3553(a).”                  United States v. Hernandez-

Villanueva, 473 F.3d 118, 122-23 (4th Cir. 2007).                             Moreover,

notwithstanding our deferential standard for review, it is well

established that a sentence well outside the advisory Guidelines

range “should be supported by a more significant justification

than a minor one.”         Gall, 128 S. Ct. at 597.

                                           B.

        At     Gaskill’s   sentencing,          the    district       court   did     not

explicitly state that it had considered any of the § 3553(a)

factors.           Significantly,        the    court     did     not    address      the

Government’s § 3553(a) contentions on the nature of the offense,

the    characteristics      of     the    defendant,      or    the     importance    of

                                           16
affording         adequate        deterrence          to      criminal          conduct.

Additionally, the court failed to assess Gaskill’s contentions —

presented      in    his   variance      motion       —     that    he   had    neither

sanctioned, participated in, nor authorized the dredging; that

he had been “betrayed” by Moore; and that his criminal conduct

constituted aberrant behavior.

       The sentencing court observed that, although both Gaskill

and the Government had made arguments concerning the appropriate

sentence, other factors would also be considered.                        See J.A. 764

(“I’m going to give both defendants a sentence in a minute, but

as the referee, I think it would be unjust for the sentence to

be grounded only in what the two sides say, because I think that

grossly distorts what’s going on in this case.”).                        In order to

determine whether the court considered the § 3553(a) factors, we

assess the other factors discussed by the court, placing them

into   two    broad     categories:      the    “dredging      comments”        and   the

“public service comment.”

                                          1.

       In   its     dredging   comments,       the   court    stated     that    it   was

“committed to restoring and preserving . . . the environment” in

coastal      North    Carolina,    but    that       “the   whole    mosaic      of   the

environment” should be considered.                   J.A. 764.      The court noted

that, in assessing the impact to this “delicate and precious

resource,” consideration should be given to the roles of “the

                                          17
national government, the United States, and the state of North

Carolina.”          Id. at 763.            The court highlighted the fact that

Gaskill did not simply “on a Saturday afternoon, decide[] to go

out,        [and]      on     a    lark     do    something      that    impacted      the

environment.”               Id.     Rather,      “[t]his   was   the    state    of   North

Carolina, through all its agencies and resources, doing this as

official policy.”                 Id.     Further, the court observed that the

ferry       services         provided      by    North     Carolina     are     “critical,

essential, life-saving and life-preserving and life-generating

lines between coastal areas, islands, and the people who live

there.”       Id. 12




       12
       As an example of the existing situation in coastal North
Carolina, the district court discussed at some length the
relationship of the state and federal governments and their
response after Hurricane Isabelle:

       In Hurricane Isabelle, an inlet was punched through on
       Hatteras Island. Did they call it an inlet? No. Why
       didn’t they call it an inlet? They didn’t call it an
       inlet because you can’t close an inlet, but you can
       close a breach. So the government, state and federal,
       went hog wild, hard as they could, long as they could,
       dredging and pumping.     Was that an environmentally
       positive or sound event?     I don’t know. . . . Was
       there a political and policy commitment to keep a land
       road to Hatteras?   You bet there was.   Did that mean
       that that inlet was going to be closed? If in any way
       it was physically possible, that inlet was going to be
       closed, and there was no limit to what was going to
       happen until that happened.

J.A. at 764-65.


                                                 18
       Thus,     although         the        sentencing          court    recognized         that

environmental        damage          to      the      Basin      was     “unfortunate         and

reprehensible,”           it   tempered        that    observation        by    stating      that

such    damage   “needs         to     be    seen     in   the     context     of    everything

that’s going on in coastal North Carolina.”                               J.A. 765.           The

court then stated that “[t]he state necessarily and properly

remediated the damage.                 Was there a long-term permanent effect?

Yes, I think so, based on what I’ve read.                            Is that unfortunate?

Yes.     Is there anything more that can be done?                            Probably nature

needs to take its course.”                   Id. at 765-66.

       The   dredging          comments       thus    only     address     the      nature    and

circumstances of the prop washing incident in the Basin.                                     They

do     not   reach    or       address        the     nature       and   circumstances         of

Gaskill’s      § 1001          false        statements       offense,     and       cannot     be

characterized as addressing any specific § 3553(a) factor.                                   As a

result, the dredging comments are not linked to the history and

characteristics           of     Gaskill        personally,         to    the       nature    and

circumstances        of    his    § 1001       offense,       or    to   any    other    factor

specified in § 3553(a).

                                                2.

       Turning to the public service comment, the sentencing court

recognized that Gaskill had served in a supervisory capacity for

the state and had a long history of public service.                                   The court

observed that Gaskill had “provided extensive public service in

                                                19
his job as director of the ferry service” and that he had served

in a management capacity as a state employee with significant

responsibilities.              J.A. 766.      This comment appears to bear on

the    factor       identified          in    § 3553(a)(1),     “the       nature    and

circumstances of the offense and the history and characteristics

of the defendant.”               See Hernandez-Villanueva, 473 F.3d at 122

(explaining         that       sentencing     court   “‘may     consider,         without

limitation, any information concerning the background, character

and conduct of the defendant, unless otherwise prohibited by

law’” (quoting USSG § 1B1.4)).                 Accordingly, the public service

comment indicates that the court partially considered one aspect

— the history and characteristics of the defendant — of one

factor under § 3553(a).

                                              C.

       In the absence of some indication that the sentencing court

considered all the § 3553(a) factors, we are unable to conclude

that it complied with its § 3553 mandate.                     See United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (explaining

that    “district          court’s       explanation     should        provide      some

indication      .    .     .    that    the   court   considered       the   § 3553(a)

factors”).      First, the court did not explicitly state that it

had considered the § 3553(a) factors or address the parties’

arguments       addressing          such      factors.        Second,        in     these

circumstances,        we       accept   the   proposition     that   the     sentencing

                                              20
court primarily considered the factors it placed on the record

at the sentencing hearing — i.e., the dredging comments and the

public service comment — in granting a downward variance.                 The

court’s   implicit    consideration     of   only   a   part   of   a   single

§ 3553(a)   factor,    however,   is    insufficient      to   support    the

implication that it considered each of the § 3553(a) factors. 13

Finally, the Statement of Reasons filed in connection with the

sentencing did not explain the court’s reasoning.              In fact, the

court did not identify any § 3553(a) factor in its Statement of

Reasons as being supportive of a variance sentence.                 Because a

sentencing court should provide a more substantial justification

for a probationary sentence when the Advisory Guidelines call

for an active sentence of imprisonment, such as in this case, we

are unable to conclude that the award of a downward variance was

procedurally sound. 14


     13
        Gaskill contends that the sentencing court incorporated
the arguments that were made in his motion for a variance when
the court stated that it was “going to allow the defendant’s
motion for a variant sentence on Mr. Gaskill.”     See J.A. 766.
The record reveals that, although the court granted Gaskill’s
motion, it did so without referring to Gaskill’s asserted
reasons in any way.   We are, in these circumstances, unable to
impute the contentions of the motion to the court’s reasoning.
     14
         On   appeal,  the   Government  has  characterized  the
sentencing court’s reliance on factors not cognizable under
§ 3553(a) as constituting procedural error.     Br. of Appellant
27-30.   So long as a sentencing court satisfies the procedural
requirements delineated by the Supreme Court, however, a
challenge   to   its  reliance   on  improper  factors  is  more
(Continued)
                                   21
                                 IV.

     Pursuant   to   the   foregoing,   we   vacate   and   remand   for

resentencing.

                                                 VACATED AND REMANDED




appropriately considered under a substantive reasonableness
analysis. See United States v. Moreland, 437 F.3d 424, 434 (4th
Cir. 2006) (instructing that “[a] sentence may be substantively
unreasonable if the court relies on an improper factor”); see
also United States v. Green, 436 F.3d 449, 456-57 (4th Cir.
2006) (recognizing that a “district court’s reasons for not
applying the properly calculated Guideline range must be based
on the factors listed in § 3553(a)”). Having concluded that the
court erred procedurally, we need not reach or assess the
substantive reasonableness of the sentence.



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