                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4814


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VINCENT SUMPTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
Chief District Judge. (5:05-cr-00246-FL)


Submitted:   June 17, 2009                 Decided:    April 7, 2011


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Thomas   N.   Cochran,   Assistant   Federal   Public   Defender,
Greensboro, North Carolina, for Appellant.         George E. B.
Holding, United States Attorney, William M. Gilmore, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Vincent Sumpter appeals his sentence on a conviction,

following a jury trial, to aiding and abetting and conspiracy to

unlawfully obstruct, delay and affect commerce by robbery, in

violation of 18 U.S.C. § 1951 (2006) (Count One), 1 and on a

guilty plea to unlawfully obstructing, delaying, and affecting

commerce      by     robbing    Friedman’s,     and    aiding   and   abetting,     in

violation       of     18      U.S.C.   §§ 1951,      2   (2006)      (Count   Six);

brandishing firearms in furtherance of a crime of violence, the

Friedman’s robbery, and aiding and abetting, in violation of 18

U.S.C. §§ 924(c), 2 (2006) (Count Seven); possession of firearms

after       having    previously    had    been   convicted     of    a   felony   and

aiding and abetting, in violation of 18 U.S.C. §§ 922(g)(1),

924, 2 (2006) (Count Eight). 2             Following two sentencing hearings,

during        which     Sumpter’s         objections      to    the       Presentence

Investigation Report (“PSR”) were fully argued and considered,

        1
       In furtherance of this conspiracy, the Grand Jury alleged
three overt acts:   First, that Sumpter and one other person on
April 22, 2005, robbed the Perry Brothers jewelry store in
Raleigh, North Carolina (“Perry Brothers”), at gunpoint; second
that Sumpter and others on April 29, 2005, robbed the Ora
jewelry store in Raleigh, North Carolina (“Ora”), at gunpoint;
and third that Sumpter and others on June 8, 2005, robbed the
Friedman’s jewelry store in Dunn, North Carolina (“Friedman’s”),
at gunpoint.
        2
       The jury found Sumpter not guilty of Counts Two through
Five of the indictment, which charged Hobbs Act and firearms
violations relative to the Perry Brothers and Ora robberies.



                                            2
the district court determined Sumpter qualified as both a career

criminal and an armed career offender, and sentenced him to a

total of 584 months’ imprisonment (240 months concurrently on

Counts One and Six, 500 months on Count Eight concurrent with

Counts One and Six, and 84 months on Count Seven consecutively

to Counts One, Six, and Eight), five years of supervised release

(three years each on Counts One and Six concurrently with five

years each on Counts Seven and Eight), and ordered payment of

the statutory special assessment of $400, restitution in the

amount of $5,424.39 jointly and severally with all codefendants,

and a fine in the amount of $250,000.

             On appeal, Sumpter (1)          challenges         the       district

court’s denial of a two-level reduction in his offense level for

acceptance     of   responsibility,         pursuant    to     U.S.   Sentencing

Guidelines     Manual    § 3E1.1,     (2)    claims    the     district   court’s

explanation of its reasons for the sentence were inadequate, and

(3) claims the district court erred in failing to make findings

concerning his ability to pay prior to imposing the $250,000

fine.      We affirm Sumpter’s conviction, vacate his sentence and

remand for resentencing.

             Sumpter first challenges the district court’s refusal

to grant him a two-level reduction of his offense level for

acceptance of responsibility.          He claims that, because the form

of   the    indictment   was   such    that    all     three    robberies    were

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included as objects in the single conspiracy charge of Count

One,    he   was    forced    to    go    to          trial       on   that    charge     because,

despite his admitted involvement in the Friedman’s robbery, he

was not guilty of participating in either the Perry Brothers or

Ora robberies.        He asserts that had he pled guilty to Count One,

he would necessarily be admitting to participating in the other

two robberies even though he did not so participate, and would

have exposed himself to sentencing based on conduct of all three

robberies, pursuant to USSG § 1B1.2(d).                                He claims that, under

those    unique     circumstances,            the       district          court      should      have

granted him an acceptance of responsibility reduction despite

the fact he went to trial.

             This court reviews a district court’s decision to deny

an adjustment for acceptance of responsibility for clear error.

United States v. Pauley, 289 F.3d 254, 261 (4th Cir. 2002).

Pursuant     to     USSG     § 3E1.1,         a        reduction         for    acceptance         of

responsibility        is     appropriate              “[i]f        the     defendant       clearly

demonstrates acceptance of responsibility for his offense. . .”

and    “is   not    intended       to    apply         to     a    defendant        who   puts    the

government     to    its     burden      of       proof       at       trial   by    denying      the

essential factual elements of guilt, is convicted, and only then

admits guilt. . . .”          USSG § 3E1.1, App. n.2.

             Here, prior to trial, at the time Sumpter pled guilty

to the Friedman’s robbery, the Government’s factual proffer set

                                                  4
forth all the essential factual elements necessary to convict

him     of    the    conspiracy       charged          in    Count     One,      which     count

expressly listed the Friedman’s robbery as an overt act in the

conspiracy.         Accordingly, in light of his plea to the Friedman’s

robbery, Sumpter knew or should have known that a reasonable

jury would have found him guilty of Count One.                              As the district

court noted, that he sought to put the Government to its burden

on Count One as a trial tactic hoping the jury would not convict

him of conspiracy in the Friedman’s robbery because he was not

guilty       of     the   other      two     robberies,         does       not    support    an

acceptance of responsibility reduction.                         Moreover, while Sumpter

did not dispute his guilt on the commission of the Friedman’s

robbery, he never admitted his guilt in the conspiracy to commit

the     Friedman’s        robbery,         and        thus     did    not       fully     accept

responsibility for all his actions relative to the Friedman’s

robbery.          The record reveals that the district court carefully

considered         all    the   relevant         facts       and     issues      relating     to

Sumpter’s request for an acceptance of responsibility reduction,

including whether Sumpter accepted responsibility for all the

actions      of,    and   relating        to,    the     Friedman’s        robbery.       Under

these    circumstances,         we    find       no    clear    error      in    the    district

court’s       decision      not      to    award        Sumpter       an     acceptance      of

responsibility reduction.



                                                 5
              Sumpter next argues that the district court failed to

adequately explain the term of imprisonment it imposed, contrary

to     the     requirements          of         18      U.S.C.       § 3553(c)            (2006).

Specifically, he asserts that the reasons given by the district

court for its sentence, i.e., Sumpter’s career offender status,

the 84-month consecutive term for his guilty plea to a § 924(c)

offense, and his violent history, constituted an “unacceptably

sparse     rationale”        and   were     redundant             because     all      had   been

considered previously by Congress and the Sentencing Commission

in     developing      the    advisory          guideline          range     applicable       to

Sumpter’s crime.

              After United States v. Booker, 543 U.S. 220 (2005), we

review a sentence for reasonableness, and “whether inside, just

outside,      or    significantly         outside       the       Guidelines        range,”    we

apply a “deferential abuse-of discretion standard.”                                      Gall v.

United States, 552 U.S. 38, 52 (2007).                            First, we must “ensure

that    the   district       court      committed           no    significant          procedural

error.”       Id.    at   51.      Only     if        the    sentence       is    procedurally

reasonable can we evaluate the substantive reasonableness of the

sentence,      again      using    the     abuse        of       discretion       standard     of

review.       Id.; see also United States v. Carter, 564 F.3d 325,

328    (4th   Cir.     2009).        In    our       determination          of    whether     the

district court committed any significant procedural error, we

look     to   any    failure       in     the        calculation      (or        the     improper

                                                6
calculation)      of     the       Guidelines         range,     the   treatment         of   the

Guidelines as mandatory, any failure to consider the § 3553(a)

factors, any selection of a sentence using clearly erroneous

facts, and any failure to adequately explain the chosen sentence

and any deviation from the advisory Guidelines range.                                 Gall, 552

U.S. at 51.           The district court “must make an individualized

assessment      based     on       the     facts         presented”    when     rendering      a

sentence, id., applying the relevant § 3553(a) factors to the

specific circumstances of the case and the defendant, and must

“state    in    open     court”      the    particular          reasons      supporting       its

chosen sentence.          Carter, 564 F.3d at 328; see also 18 U.S.C.

§ 3553(c)      (2006).         A    brief    statement          of   the     reasons    suffice

under § 3553(c)(1).            Rita v. United States, 551 U.S. 338, 356-57

(2007).

               We conclude that the reasons stated by the district

court following imposition of its 584-month sentence in this

case   were     not    sufficiently          individualized            such    that      we   can

conclude that the sentencing court considered Sumpter “as an

individual      and    [his]        case    as       a    unique     study    in   the    human

failings that sometimes mitigate, sometimes magnify, the crime

and the punishment to ensue.”                        Gall, 552 U.S. at 52 (internal

quotation marks omitted); Carter, 564 F.3d at 328.                              As we stated

in United States v. Lynn, 592 F.3d 572, 584 (4th Cir. 2010), “a

district       court’s     explanation           of       its   sentence       need    not    be

                                                 7
lengthy,     but        the   court    must     offer    some       ‘individualized

assessment’    justifying       the    sentence    imposed      and    rejection     of

arguments for a higher or lower sentence based on § 3553.”                           We

express no view of course on the substantive reasonableness of

the sentence imposed.

            The     final     issue    Sumpter     raises      on     appeal    is    a

challenge to the $250,000 fine imposed, on the basis that the

district court failed to consider the congressionally-mandated

factors set forth in 18 U.S.C. § 3572 (2006), as to his ability

to   pay.     The       Government    agrees    that    the   sentencing       court’s

failure to make findings concerning Sumpter’s ability to pay a

fine   prior       to    ordering     payment     of    the     fine    constitutes

reversible error.

            This court reviews a district court’s factual findings

with respect to the imposition of a fine under the “clearly

erroneous” standard of review.                 United States v. Aramony, 166

F.3d 655, 665 (4th Cir. 1999).            Pursuant to 18 U.S.C. § 3572(a),

the district court, prior to imposing a fine, must consider the

defendant’s income, financial resources, and earning capacity,

as well as the burden a fine would impose on the defendant or on

any person financially dependent on the defendant.                     The district

court’s findings about a defendant’s ability to pay must be made

expressly.        See United States v. Castner, 50 F.3d 1267, 1277

(4th Cir. 1995); United States v. Arnoldt, 947 F.2d 1120, 1127

                                          8
(4th Cir. 1991); United States v. Harvey, 885 F.2d 181, 182-83

(4th Cir. 1989).       While the requirement for such findings may be

satisfied   by   the    district     court’s        adoption    of   the    PSR   that

includes adequate factual findings to allow effective appellate

review of the fine imposed, Castner, 50 F.3d at 1277, in this

case, the probation officer noted that Sumpter had a negative

net worth of $2,719 and no income, and concluded that Sumpter

was, without the ability to pay a fine in addition to court-

imposed restitution.

            On these facts, we find plain error in the district

court’s   failure      to    make   the    required      findings      relative     to

Sumpter’s   ability     to    pay   a     fine.        Accordingly,        we   affirm

Sumpter’s   convictions,        vacate        his   sentence,    and    remand     for

resentencing.    In resentencing, we direct the district court to

give specific consideration to Gall and Carter, to make findings

concerning Sumpter’s ability to pay a fine, to modify the fine

if necessary, and to reconcile the installment payment amounts

in the written judgment with the amounts specified during the

oral pronouncement of Sumpter’s sentence. 3




     3
       The written judgment erroneously states that Sumpter’s
restitution payment while under supervised release is to be
payable in $100 per month installments, while the oral
pronouncement of the district court was that such payments be
made in $50 per month installments.



                                          9
            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.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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