                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5227


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHAD BERNARD CUMMINGS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-cr-00161-BO-2)


Submitted:   August 17, 2011                 Decided:   August 25, 2011


Before KING, WYNN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina,
for Appellant.   George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Chad    Bernard        Cummings       pled    guilty     to    conspiracy       to

receive, conceal, and possess stolen mail in violation of 18

U.S.C. § 371 (2006), and was sentenced to a term of twenty-four

months’ imprisonment.             Cummings appeals his sentence, contending

that (1) the court erred in determining his criminal history

score       under   U.S.      Sentencing       Guidelines        Manual      § 4A1.1(e)       and

§ 4A1.2(d)(1)         (2010);     and     (2)       the     sentence    was        unreasonable

because       the     court    misapplied        the      Guidelines         and    failed     to

explain       its     reasons     for      imposing          a   sentence          within     the

Guidelines range.              For the reasons explained below, we affirm

the district court’s determination of the Guidelines range, but

vacate the sentence and remand for resentencing.

               Cummings first argues that § 4A1.1(e) was inapplicable

because his North Carolina “breaking or entering” offenses under

N.C.G.S.       § 14-54(a)        (LexisNexis          2009)      were     not       crimes    of

violence. 1           An      issue     that        turns     primarily        on     a     legal


        1
       Because Cummings did not make this specific argument in
the district court, the government argues that the issue should
be reviewed for plain error.   United States v. Olano, 507 U.S.
725, 732-37 (1993). Similarly, Cummings did not argue, and the
district court did not address, the question of whether the
prior convictions were adult convictions, which the record shows
they were.   However, Cummings preserved his claim of error in
the calculation of his criminal history score, and we may affirm
the application of § 4A1.1(e) under either the de novo or plain
error standard of review.



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interpretation of the Guidelines is reviewed de novo.                             United

States v. Kinter, 235 F.3d 192, 195 (4th Cir. 2000).                          Cummings

attempts to distinguish United States v. Thompson, 421 F.3d 278

(4th   Cir.    2005)       (Thompson     I)    (holding    that   a   North    Carolina

breaking or entering conviction is a “violent felony” under 18

U.S.C.A. § 924(e) (West 2000 & Supp. 2011), the Armed Career

Criminal Act (ACCA)), 2 on the ground that, in his case, the prior

convictions         were    crimes      of    violence,    not    violent     felonies.

However, this circuit’s “precedents evaluating the ACCA apply

with equal force to U.S.S.G. § 4B1.2,” which defines crimes of

violence.       United States v. Jarmon, 596 F.3d 228, 231 n.* (4th

Cir.),      cert.     denied,     131    S.    Ct.   145   (2010).     In     addition,

Cummings’ prior sentences were adult sentences of imprisonment

for more than one year and one month.                      Therefore, the criminal

history calculation properly began with § 4A1.1(a), as directed

in § 4A1.2(d)(1), which deals with offenses committed prior to

age eighteen.          Because the breaking and entering sentences and

the burglary sentences were imposed on the same day, they were

all        properly        counted       under       § 4A1.1(e).            See     USSG

§ 4A1.2(a)(2)(B).            In    these      circumstances,      although     Cummings

       2
       We recently reaffirmed our decision in Thompson I.  See
United States v. Thompson, 588 F.3d 197 (4th Cir. 2009)
(Thompson II) (holding that Thompson I remains controlling law
after Begay v. United States, 553 U.S. 137 (2008)), cert.
denied, 130 S. Ct. 1916 (2010).



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contends that the court should have applied USSG § 4A1.2(d)(2),

that subsection did not apply.                      Thus, the court did not err in

overruling        Cummings’        objection           to     the      criminal      history

calculation.

              Cummings         argues    that       his     sentence    is    unreasonable

because the district court gave no explanation for its decision

to impose a twenty-four-month sentence, within the Guidelines

range of 21-27 months, even though he requested a sentence of

time served or probation and the government asked for a sentence

at the low end of the range.                        Because Cummings argued for a

lower sentence than the one imposed, he preserved this issue,

and review is for abuse of discretion.                         United States v. Lynn,

592 F.3d 572, 578 (4th Cir. 2010).

              A    district        court        commits        procedural          error    in

sentencing        when    it    fails    “to        adequately      explain    the    chosen

sentence.”        Gall v. United States, 552 U.S. 38, 51 (2007).                             In

evaluating        the    district       court’s       explanation       of   the    sentence

imposed,   we      have    held     that,       while       the   district     court       must

consider the 18 U.S.C. § 3553(a) (2006) factors and explain the

sentence, it need not explicitly refer to § 3553(a) or discuss

every factor on the record.                United States v. Johnson, 445 F.3d

339, 345 (4th Cir. 2006).                  However, the district court “must

make an individualized assessment based on the facts presented”

and   apply       the    “relevant       § 3553(a)          factors    to    the    specific

                                                4
circumstances of the case before it.”                 United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (citation, internal quotation

marks,    and    emphasis   omitted).         The   district    court       must   also

“state    in    open   court   the    particular      reasons       supporting      its

chosen sentence” and “set forth enough to satisfy” us that it

has “considered the parties’ arguments and has a reasoned basis

for exercising [its] own legal decisionmaking authority.”                          Id.

(citations and internal quotation marks omitted).                         The reasons

given by the district court need not be “couched in the precise

language of § 3553(a),” as long as the reasons “can be matched

to a factor appropriate for consideration under that statute and

[are] clearly tied to [the defendant’s] particular situation.”

United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007).

               In this case, the district court gave no explanation

for its chosen sentence and did not address Cummings’ arguments

for   a   sentence     below   the    Guidelines     range.         The    court   thus

erred,    frustrating       appellate    review,      and     the    error    is   not

harmless.        Consequently,       Cummings’      sentence    was       procedurally

unreasonable.

               We therefore affirm the district court’s determination

of    Cummings’    criminal    history    category      and    Guidelines       range.

However, we vacate the sentence and remand for resentencing in

accordance with this opinion.                We dispense with oral argument

because the facts and legal contentions are adequately presented

                                         5
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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