                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4242



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

           versus


JONATHAN PAUL JOHNSON,

                                              Defendant - Appellee.


Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (CR-04-545)


Argued:   February 2, 2006                 Decided:   April 12, 2006


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.      Judge
Gregory wrote a separate opinion concurring in the judgment.


ARGUED: Stacey Denise Haynes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellant.   Joshua Snow Kendrick, Columbia, South Carolina, for
Appellee.   ON BRIEF: Jonathan S. Gasser, Acting United States
Attorney, Columbia, South Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Jonathan Paul Johnson pled guilty to one count of being a

felon in possession of a firearm and one count of possession with

intent to distribute a quantity of cocaine and a quantity of

marijuana.        The   Pre-Sentence       Investigation   Report      (“PSR”)

designated Johnson as a career offender and assigned him an offense

level of 34 with a criminal history of VI, which produced a

sentencing guideline range of 262-327 months of imprisonment.

During a sentencing hearing where neither party objected to the

PSR, the district court accepted this range; however, without

explanation, the district court varied from the range and sentenced

Johnson to two concurrent 120-month terms of imprisonment.                 The

United States now appeals this sentence pursuant to 18 U.S.C. §

3742(b), arguing that the sentence is unreasonable.                    For the

reasons set forth below, we vacate and remand this case for

resentencing.

     Approximately one month before the district court sentenced

Johnson, the Supreme Court decided United States v. Booker, 543

U.S. 220 (2005), effectively rendering the federal sentencing

guidelines advisory and establishing a “reasonableness” standard of

sentencing review.      Despite the advisory nature of the guidelines,

our cases applying Booker have emphasized that when sentencing a

defendant,    a   district   court   must    still   calculate   the    proper

guideline range and consider that range along with other relevant


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factors set forth in the guidelines and in 18 U.S.C. § 3553(a), and

if the district court “imposes a sentence outside the guideline

range, it should explain its reason for doing so.”          United States

v. White, 405 F.3d 208, 216 (4th Cir. 2005); United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005).         The explanation of a

sentence outside the guideline range “must be tied to the factors

set forth in § 3553(a) and must be accompanied by findings of fact

as necessary.”    United States v. Moreland, 437 F.3d 424, 432 (4th

Cir. 2006).      Moreover, if a sentence “is imposed outside the

Guideline range and the district court provides an inadequate

statement of reasons . . . in departing from the Guidelines’

recommendation,” then that sentence “will be found unreasonable and

vacated.”     United States v. Green, 436 F.3d 449, 457 (4th Cir.

2006).

       As noted, the district court accepted the guideline range of

262-327 months.      Before imposing sentence, the district court

discussed the case generally with Johnson and his counsel.              This

discussion centered on the fact that Johnson was a young man with

children and that he had grown up in a bad neighborhood.               During

this   discussion,   Johnson’s    counsel   requested     that   the   judge

sentence Johnson to concurrent 120-month sentences.          In response,

counsel for the government reviewed Johnson’s criminal history and

urged a sentence within the guideline range.         After some further

discussion    with   Johnson,    the   district   court   pronounced     the


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sentence,   varying   from   the   guideline    range   and   imposing   the

concurrent 120-month sentences.          In doing so, the district court

offered no explanation for its decision to sentence Johnson below

the guideline range. Although the government objected based on the

sentence being outside the guideline range, the district court

noted the objection but did not elaborate on the basis for the

sentence.

     In this circumstance, we vacate and remand this case so that

the district court can resentence Johnson in a manner consistent

with our post-Booker precedent.           We express no opinion on the

ultimate issue of whether the 120-month sentence is appropriate.*



                                                    VACATED AND REMANDED




     *
      Although neither party objected to the sentencing range in
the district court, they now both assert that the PSR miscalculated
the sentencing range and that it actually should have been 188-235
months. Even so, Johnson’s 120-month sentence still falls below
the sentencing range and requires explanation by the district
court.

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GREGORY, Circuit Judge, concurring in the judgment:

      Although I concur in the judgment, I write separately to note

that the record in this case could support the district court’s 68-

month downward variance.        For example, at the sentencing hearing,

the district court discussed various aspects of Johnson’s history

and characteristics, touching upon his youth, education, four

dependent children, and the difficult familial circumstances that

contributed to his criminal activities.             Further, the presentence

investigation report detailed Johnson’s experiences as a sixteen-

year-old honor roll student who, upon being uprooted to a drug-

riddled neighborhood, committed three felony offenses over the next

two   years   to   support    his   mother    and   three   younger   sisters.

Finally, the record could lead one to conclude that the Guidelines

range overstated Johnson’s criminal history by including a career

criminal offender enhancement for offenses committed in quick

succession during Johnson’s troubled youth, two of which were

punished by concurrent sentences.            Indeed, prior to United States

v. Booker, 543 U.S. 220 (2005), several courts of appeals affirmed

the use of substantial downward departures under U.S.S.G. § 4A1.3

where the career criminal offender enhancement overstated the

defendant’s criminal history.        See, e.g., United States v. Bowser,

941 F.2d 1019, 1026 (10th Cir. 1991) (affirming the district

court’s determination that the career criminal offender enhancement

over-represented     the     defendant’s     criminal   history   where    the


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defendant committed the predicate offenses at age twenty, the

offenses were committed in close proximity to one another, and were

punished by concurrent sentences; affirming the resulting downward

departure from a Guidelines range of 262-327 months to 92-115

months).   See also United States v. Feemster, 435 F.3d 881, 883-84

(8th Cir. 2006) (remarking that it was appropriate for the district

court to consider the defendant’s history and characteristics in

deciding whether a career criminal offender enhancement overstated

the defendant’s criminal history, particularly where a juvenile

conviction   increased   substantially   the   Guidelines   range).

Therefore, under the circumstances, the district court’s decision

to vary and the degree of the variance could be reasonable if

supported by a sufficient explanation from the district court.

     Here, however, the district court, which, of course, had to

proceed without the guidance of United States v. Green, 436 F.3d

449 (4th Cir. 2006), and United States v. Moreland, 437 F.3d 424

(4th Cir. 2006), did not explicitly set forth how Johnson’s history

and characteristics--or any other mitigating facts--supported both

the decision to vary and the extent of the variance.   Accordingly,

I concur in the judgment to remand for resentencing.




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