                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4445


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

LEWIS ALEXANDER HINES, a/k/a Lewis L.O. Hines, a/k/a Lorenzo Hines,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, Chief District Judge. (7:17-cr-00075-BO-1)


Argued: September 20, 2019                                  Decided: December 18, 2019


Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Kristine L. Fritz, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Defendant Lewis Alexander Hines pleaded guilty to possession with intent to

distribute 28 grams or more of a mixture or substance containing a detectable amount of

cocaine base.    21 U.S.C. § 841(a)(1), (b)(1)(B) (2012).        Although the Sentencing

Guidelines recommended a 60-month term of imprisonment, the district court upwardly

departed and sentenced Defendant to 120 months. On appeal, Defendant argues that the

district court committed a procedural error by sentencing him to double the Guidelines term

of imprisonment without addressing his nonfrivolous arguments in support of a Guidelines

sentence. Compelled by our holding in United States v. Blue, 877 F.3d 513, 518 (4th Cir.

2017), we must vacate Defendant’s sentence and remand for resentencing.

       We review a criminal sentence, “whether inside, just outside, or significantly outside

the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. King, 673

F.3d 274, 283 (4th Cir. 2012).       We consider both the procedural and substantive

reasonableness of the sentence. Gall, 552 U.S. at 51. District courts commit procedural

error where, for example, they improperly calculate the defendant’s Guidelines range, fail

to give the parties an opportunity to argue for an appropriate sentence, do not consider the

18 U.S.C. § 3553(a) sentencing factors, select a sentence based on facts that were clearly

erroneous, or do not sufficiently explain the selected sentence. Id. at 49–51. Only after

determining that the sentence is procedurally reasonable do we consider whether it is

substantively reasonable, “tak[ing] into account the totality of the circumstances.” Id. at

51; see United States v. Carter, 564 F.3d 325, 330 n.4 (4th Cir. 2009) (“Having found the
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sentence procedurally unreasonable . . . , we cannot review the sentence for substantive

reasonableness.”).

       “Under the law of this circuit a district court must address or consider all non-

frivolous reasons presented for imposing a different sentence and explain why he has

rejected those arguments.” United States v. Ross, 912 F.3d 740, 744 (4th Cir.), cert. denied,

140 S. Ct. 206 (2019). “The adequacy of the sentencing court’s explanation depends on

the complexity of each case. There is no mechanical approach to our sentencing review.”

Blue, 877 F.3d at 518. Rather, “[t]he appropriateness of brevity or length, conciseness or

detail, when to write, what to say, depends upon [the] circumstances.” Rita v. United

States, 551 U.S. 338, 356 (2007). As the Supreme Court has recently noted, “[t]he law

leaves much, in this respect, to the judge’s own professional judgment.” Chavez-Meza v.

United States, 138 S. Ct. 1959, 1964 (2018) (quoting Rita, 551 U.S. at 356).

       Here, it is important that the district court upwardly varied and imposed a sentence

(120 months) twice the top of the Guidelines range (60 months). It is “uncontroversial that

a major departure” from the Guidelines “should be supported by a more significant

justification than a minor one.” Gall, 552 U.S. at 50; see United States v. Gibbs, 897 F.3d

199, 206 (4th Cir. 2018) (affirming a Guidelines-recommended sentence for revocation of

supervised release but noting that “[i]f the court had determined to depart from the

Guidelines, perhaps a more fulsome explanation might have been required”); United States

v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).

       Additionally, while “it is sometimes possible to discern a sentencing court’s

rationale from the context surrounding its decision, an appellate court nonetheless ‘may
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not guess at the district court’s rationale, searching the record for statements by the

Government or defense counsel or for any other clues that might explain a sentence.’”

Ross, 912 F.3d at 745 (citations omitted) (quoting Carter, 564 F.3d at 329–30). A

“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, 551 U.S. at 356; see Lynn, 592 F.3d at 576 (recognizing

that “an individualized explanation must accompany every sentence”). In cases where

“‘the district court could have made precisely the same statements in support of a different

sentence,’ we have found the explanation to be inadequate and have remanded for

resentencing.” Blue, 877 F.3d at 519 (quoting Lynn, 592 F.3d at 585).

       Defendant’s counsel made at least seven arguments in support of a within-

Guidelines sentence, stating that Defendant (1) had a limited criminal history, which started

when he was only 17 years old; (2) left his gang and, because of that decision, was shot

three times; (3) does not carry a gun and did not use violence in this case; (4) began a GED

program, which he was unable to complete after being shot; (5) repeatedly applied for

credentials to work at a port; (6) demonstrated maturity and a desire to be responsible for

his family by fixing up his uncle’s old rental home for occupation by Defendant and his

disabled mother, so that Defendant could care for her; and (7) accepted responsibility in

this case and cooperated as a key witness in the homicide prosecution of a member of his

former gang, for which he received threats.

     The district court did not address most of Defendant’s mitigating arguments. Rather,

the court referred to Defendant’s prior history and concluded that he had “demonstrated
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 repeatedly that he is a danger to the community and a recidivist and can only be dealt with

 by being removed from society and placed in a prison.” J.A. 71. Citing § 3553(a)(2), the

 court noted that selling drugs is a “serious offense,” that Defendant “need[ed] to be

 deterred,” that “the public needs to be protected,” and that Defendant was “young enough

 so that he [could] take advantage of educational and vocational training” during his

 imprisonment. J.A. 72–73. On appeal, Defendant contends that the district court needed

 to address his arguments explicitly and explain why it rejected them. The Government

 responds that the court implicitly rejected those arguments by labeling Defendant a

 recidivist.

       Blue mandates our decision in favor of Defendant. In Blue, defendant-appellant

 Benjamin Blue raised eight arguments to support a below-Guidelines sentence:

       [1] [H]e was influenced by his older brothers . . . ; [2] he committed the instant offense
       to support his opiate addiction; [3] he had successfully found employment and was a
       hard worker; [4] he was a good father . . . ; [5] his co-defendant received a
       [comparatively lenient] sentence . . . ; [6] the career offender Guidelines range was
       overly harsh and failed to deter offenders; [7] he accepted responsibility for his
       conduct; and [8] he attempted to provide substantial assistance in the prosecution of
       others, but his attempts were frustrated by factors outside of his control.

Blue, 877 F.3d at 517. The district court sentenced Blue within the Guidelines, referring to

the first two of his mitigating arguments but failing to acknowledge or address the other six.

Id. at 517, 519. This Court vacated the sentence. Recognizing that Blue’s arguments were

“nonfrivolous,” we held that “the district court’s failure to address [them], as well as its

failure to explain whether and why it rejected them, render[ed] Blue’s sentence procedurally

unreasonable.” Id. at 519.

       Here, Defendant raised at least seven arguments in support of a within-Guidelines

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sentence. The court rejected some of them. For example, despite Defendant’s arguments

that his crime was nonviolent and that his criminal record was limited, the court concluded

that selling drugs is a “serious offense” from which “the public needs to be protected.” J.A.

72–73. But the court did not discuss Defendant’s other arguments, which are nonfrivolous

under Blue. See 877 F.3d at 519 (noting that “attempt[s],” even if unsuccessful, “to assist

in the prosecution of others” and “family relationships ha[ving] developed since [the

defendant’s] prior . . . convictions” are nonfrivolous arguments for sentencing mitigation).

“[T]he district court’s failure to address [Defendant]’s arguments, as well as its failure to

explain whether and why it rejected them, render [Defendant]’s sentence procedurally

unreasonable.” Id.

      Furthermore, the district court in Blue stated that it had “[c]onsidered arguments on

behalf of [the defendant] with respect to history and characteristics.” Id. at 517. Many of

Blue’s arguments could have been interpreted as falling under the category of “history and

characteristics,” yet this Court “decline[d] to speculate” as to the district court’s reasoning.

Id. at 521. In the same way, the Government argues here that the district court implicitly

rejected Defendant’s arguments by stating that he is a recidivist. But that is insufficient.

“The district court had an obligation to specifically address [Defendant’s] non-frivolous

arguments.” Ross, 912 F.3d at 745 (emphasis added). It “cannot meet its responsibility

through broadly referring to the § 3553(a) factors in lieu of addressing the parties’ non-

frivolous arguments.” Id.; see also United States v. Slappy, 872 F.3d 202, 208–10 (4th Cir.

2017). Rather, the district court must make its reasoning explicit “to allow for meaningful

appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50.
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       Finally, the district court’s error is not harmless. “For a procedural sentencing error

to be harmless, the government must prove that the error did not have a substantial and

injurious effect or influence on the result.” Ross, 912 F.3d at 745 (citing Lynn, 592 F.3d at

585). Here, the district court’s primary stated reason for sentencing Defendant to an above-

Guidelines sentence was its belief that he would reoffend. However, most of Defendant’s

arguments for a Guidelines sentence related to concrete steps he had taken to remove

himself from a life of crime. It is conceivable that the district court would have sentenced

Defendant differently had it considered his nonfrivolous mitigation arguments. E.g.,

United States v. Blue, 755 F. App’x 325, 325 (4th Cir. 2019) (per curiam) (noting that after

this Court vacated Blue’s 272-month sentence and remanded the case for resentencing, the

district court imposed a reduced sentence of 228 months in prison). In other words, because

Defendant’s arguments are nonfrivolous, “we cannot say with any ‘fair assurance’ that the

district court’s explicit consideration of those arguments would not have affected the

sentence imposed.” Lynn, 592 F.3d at 585 (citation omitted) (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)).

       We therefore vacate Defendant’s sentence and remand for resentencing. We of

course express no view as to the appropriate length of a sentence in Hines’s case, leaving

that to the district court in the first instance after the Defendant’s contentions have been

more thoroughly addressed.

                                                             VACATED AND REMANDED




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