                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-5106


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JOHNNIE BLACK,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:09-cr-00022-JRS-1)


Submitted:   July 9, 2010                  Decided:   July 26, 2010


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael   S.   Nachmanoff,  Federal  Public  Defender,   Valencia
Roberts, Assistant Federal Public Defender, Patrick L. Bryant,
Research   and    Writing  Attorney,  Richmond,   Virginia,   for
Appellant. Neil H. MacBride, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Johnnie Black pleaded guilty to possession of firearms

and ammunition by a convicted felon and received a fifty-month

sentence.       On     appeal,       Black    argues      that      his     sentence       is

procedurally unreasonable because the court did not sufficiently

explain the basis for the sentence imposed.                         We agree that the

sentence        is     procedurally          unreasonable        and           remand     for

resentencing.

               Counsel    asserts      that       the    district     court       committed

procedural      error     because      it    did   not    adequately        consider      the

mitigating       issues    raised       by    Black      or   refer       to     18     U.S.C.

§ 3553(a) (2006) prior to imposing the sentence.                          The Government

argues that the procedural reasonableness of the sentence is to

be reviewed for plain error, and that Black cannot demonstrate

prejudice.       The Government contends that even if the sentence is

reviewed for harmless error, none resulted because of Black’s

extensive criminal history and he was attempting to shoot into

an occupied vehicle while illegally possessing a firearm.

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

review     a    sentence       for    reasonableness,         using       an     abuse     of

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

38, 51 (2007).         The first step in this review requires the court

to   ensure     that     the   district       court      committed     no       significant

procedural error.           United States v. Evans, 526 F.3d 155, 161

                                              2
(4th Cir.), cert. denied, 129 S. Ct. 476 (2008).                          Procedural

errors include “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.”                Gall, 552 U.S. at

51.

            “[I]f a party repeats on appeal a claim of procedural

sentencing error . . . which it has made before the district

court, [this Court] review[s] for abuse of discretion” and will

reverse if such an abuse of discretion is found unless the Court

can conclude “that the error was harmless.”                  United States v.

Lynn, 592 F.3d 572, 576 (4th Cir. 2010).                   For instance, “the

district court must state in open court the particular reasons

supporting its chosen sentence [and] 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.”            United States v. Carter, 564 F.3d

325, 328 (4th Cir. 2009) (internal citations and quotation marks

omitted).       If    “an     aggrieved    party     sufficiently      alerts    the

district court of its responsibility to render an individualized

explanation” by drawing arguments from § 3553 “for a sentence

different      than    the      one   ultimately        imposed,”      the      party

                                           3
sufficiently       “preserves   its   claim.”          Lynn,     592   F.3d      at   578.

When counsel requests a sentence at the bottom of the Guidelines

range or below, the error is preserved.                    Id. at 581.

            We conclude that, under Lynn, Black’s arguments in the

district court for a sentence at the lower end of the Guidelines

range   preserved     his    claim    of   procedural         sentencing      error    on

appeal.     Lynn, 592 F.3d at 581.              These arguments “sufficiently

alert[ed] the district court of its responsibility to render an

individualized explanation addressing those arguments.”                           Id. at

578.      Therefore, the court reviews any procedural sentencing

error for abuse of discretion and reverses unless the error was

harmless.    Id. at 579.

            The district court erred because it failed to explain

why it imposed the chosen sentence.                        See Lynn, 592 F.3d at

581-82.     The court did not address the mitigating factors raised

by Black, nor provide any other reason for choosing the sentence

imposed.      We    cannot   presume       that      the    district     court    simply

adopted the Government’s arguments.                  The error was not harmless

because the district court’s lack of explanation for imposing

this condition resulted in “a record insufficient to permit even

routine    review    for    substantive        reasonableness.”           Id.    at    582

(citation and quotation marks omitted).

            We     therefore    vacate         the   sentence     and     remand       for

re-sentencing.       We dispense with oral argument because the facts

                                           4
and legal contentions are adequately presented in the materials

before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                      VACATED AND REMANDED




                                    5
