                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-4538


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HEATHER DEYOUNG,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:12-cr-00475-GRA-2)


Submitted:   April 10, 2014                     Decided:   May 14, 2014


Before AGEE and     DIAZ,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, William J. Watkins, Jr., Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Heather      DeYoung      appeals    her   conviction       and    sentence

after pleading guilty to conspiracy to distribute and to possess

with intent to distribute oxycodone in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C) (2012).               On appeal, DeYoung contends the

district court erred under Fed. R. Crim. P. 11 in accepting her

guilty plea, and her sentence is unreasonable.                       We affirm her

conviction, vacate her sentence, and remand for resentencing.

            “A    guilty       plea   operates    as    a   waiver      of    important

rights, and is valid only if done voluntarily, knowingly, and

intelligently,         ‘with    sufficient       awareness     of       the    relevant

circumstances and likely consequences.’”                    Bradshaw v. Stumpf,

545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397

U.S. 742, 748 (1970)).           In federal cases, Rule 11 of the Federal

Rules of Criminal Procedure “governs the duty of the trial judge

before accepting a guilty plea.”                 Boykin v. Alabama, 395 U.S.

238, 243 n.5 (1969).             It “require[s] a district court, before

accepting a guilty plea, to ‘personally inform the defendant of,

and    ensure    that    he    understands,      the    nature     of    the    charges

against him and the consequences of his guilty plea.’”                           United

States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008) (quoting

United States v. Damon, 191 F.3d 561, 564 (4th Cir. 1999)).

            Rules 11(b)(1) and 11(b)(2) require the district court

to    “address   the    defendant      personally      in   open    court”     to   both

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inform her of her rights as a defendant and consequences of the

plea, and to determine that her plea is knowing and voluntary.

Fed. R. Crim. P. 11(b).               If the parties “discuss and reach a

plea agreement,” they “must disclose the plea agreement in open

court when the plea is offered.”                Fed. R. Crim. P. 11(c).          If

the Government agrees to “recommend, or agree[s] not to oppose

the    defendant’s         request,     that    a   particular    sentence       or

sentencing range is appropriate,” the court “must advise the

defendant that the defendant has no right to withdraw the plea

if the court does not follow the recommendation or request.”

Fed.   R.   Crim.     P.    11(c)(1)(B),       (c)(3)(B);   United      States   v.

Martinez, 277 F.3d 517, 530-31 (4th Cir. 2002); United States v.

Iaquinta, 719 F.2d 83, 84-85 (4th Cir. 1983).

            We “accord deference to the trial court’s decision as

to how best to conduct the mandated colloquy.”               United States v.

DeFusco, 949 F.2d 114, 116 (4th Cir. 1991); see also United

States v. Wilson, 81 F.3d 1300, 1307 (4th Cir. 1996) (noting

this   “Court   has     repeatedly       refused    to   script   the    Rule    11

colloquy, relying rather on the experience and wisdom of the

district judges below”).              A guilty plea may be knowingly and

intelligently made based on information received before the plea

hearing.    See DeFusco, 949 F.2d at 116; see also Bradshaw, 545

U.S. at 183 (trial court may rely on counsel’s assurance that

defendant was properly informed of elements of the crime).

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            “A federal court of appeals normally will not correct

a legal error made in criminal trial court proceedings unless

the    defendant    first   brought     the   error   to    the    trial    court’s

attention.”    Henderson v. United States, 133 S. Ct. 1121, 1124

(2013)    (citing     United   States    v.    Olano,      507    U.S.     725,    731

(1993)).     Federal Rule of Criminal Procedure 52(b) creates an

exception to the normal rule, providing “[a] plain error that

affects substantial rights may be considered even though it was

not brought to the court’s attention.”             Fed. R. Crim. P. 52(b).

            Because    DeYoung’s      Rule    11   claim   is     raised    for    the

first time on appeal, we review for plain error.                         See United

States v. Vonn, 535 U.S. 55, 71 (2002); Martinez, 277 F.3d at

525.     It is thus DeYoung’s burden to show (1) error; (2) that

was plain; (3) affecting her substantial rights; and (4) that

this Court should exercise its discretion to notice the error.

See Martinez, 277 F.3d at 529, 532.                 To show her substantial

rights were affected, she “must show a reasonable probability

that, but for the error, [she] would not have entered the plea.”

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

            We have reviewed the record and the parties’ briefs,

and we conclude that DeYoung fails to make this showing.                          Even

assuming that the district court did plainly err under Rule 11,

DeYoung fails to assert or show that she would not have entered

her guilty plea but for the alleged error.

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             We review a criminal sentence for reasonableness using

an abuse of discretion standard.                 United States v. McManus, 734

F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States, 552

U.S. 38, 51 (2007)).              We first consider whether the district

court     committed      a     significant        procedural    error,       such    as

improperly        calculating     the   Guidelines      range    or     inadequately

explaining the sentence imposed.                 United States v. Allmendinger,

706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S. Ct. 2747

(2013).      If the sentence is procedurally reasonable, we then

consider     whether    it   is    substantively       reasonable,      taking      into

account the totality of the circumstances.                     Gall, 552 U.S. at

51.     We presume that a sentence within or below a properly

calculated Guidelines range is substantively reasonable.                       United

States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).

             We     review   preserved      sentencing    claims       for   abuse   of

discretion, and if we find abuse, reversal is required unless

the error was harmless.             United States v. Lynn, 592 F.3d 572,

576 (4th Cir. 2010).            “A district court abuses its discretion

when    it   acts    arbitrarily     or     irrationally,      fails    to   consider

judicially        recognized      factors       constraining    its     exercise     of

discretion, relies on erroneous factual or legal premises, or

commits an error of law.”            United States v. Grant, 715 F.3d 552,

557 (4th Cir. 2013) (citation and internal quotations omitted).



                                            5
                  In sentencing, the district court must first correctly

calculate the defendant’s Guidelines range.                       Allmendinger, 706

F.3d at 340.           The court is next required to give the parties an

opportunity to argue for what they believe is an appropriate

sentence, and the court must consider those arguments in light

of the factors set forth in 18 U.S.C. § 3553(a) (2012).                             Id.

When rendering a sentence, the court must make and place on the

record       an    individualized        assessment   based     on   the    particular

facts of the case.             United States v. Carter, 564 F.3d 325, 328,

330 (4th Cir. 2009).             In explaining a sentence, the “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).      Where    a

defendant or the Government presents nonfrivolous reasons for

imposing a sentence outside the Guidelines, the district court

should address those arguments and explain why it has rejected

them.    See Rita, 551 U.S. at 357; Lynn, 592 F.3d at 584-85.

                  We   have   reviewed    the    record   and    conclude    that   the

district court failed to adequately explain its sentence, and

the sentence is procedurally unreasonable.                      DeYoung and her co-

defendant, who was her ex-husband, pled guilty together.                              At

their guilty plea hearing, the Government placed on the record

that it had agreed to make sentencing recommendations in their

                                             6
cases.       Based on DeYoung’s minor role in the conspiracy, the

Government recommended that she be sentenced to twelve months of

home confinement.          In her co-defendant’s case, the Government

recommended a reduction in drug weight and no enhancement for a

leadership role in the conspiracy.                  The district court sentenced

the co-defendant as recommended by the parties.

             At DeYoung’s sentencing that immediately followed, she

requested     that   the     district   court         likewise     sentence      her   as

recommended by the Government, or if the court determined that a

prison   sentence      was    appropriate,       that      it   give    her    the    same

benefit that her co-defendant received from the reduction in

drug weight.      The district court rejected both requests without

explanation, sentencing her instead to 70 months in prison, the

bottom of her advisory Guidelines range.                   While the co-defendant

was more culpable, he received the same sentence.

             Because    the    record     does       not    make   clear       that    the

district     court   considered     DeYoung’s         arguments     when      sentencing

her or had a reasoned basis for rejecting them, we conclude that

the court erred by ignoring her “nonfrivolous arguments for a

different      sentence      and   failing       to     explain        the    sentencing

choice.”      Lynn, 592 F.3d at 584-85.              Moreover, because we cannot

say   with    fair   assurance     that       the     district     court’s      explicit

consideration of DeYoung’s arguments would not have affected the

sentence imposed, we conclude that the Government has not shown

                                          7
that the error was harmless.         See United States v. Boulware, 604

F.3d 832, 838-40 (4th Cir. 2010).

           Accordingly,       we   affirm   DeYoung’s   conviction,       vacate

her sentence, and remand for resentencing.              We also direct that

this case be assigned to a different judge on remand.                       See

United States v. Lentz, 383 F.3d 191, 221-22 (4th Cir. 2004).

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.



                                                            AFFIRMED IN PART,
                                                             VACATED IN PART,
                                                                 AND REMANDED




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