                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4943


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NOE AGUILERA-AGUILA, a/k/a Jose Manuel Rosales,

                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-00061-BO-1)


Submitted:   May 24, 2011                       Decided:   June 17, 2011


Before MOTZ and    WYNN,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

                 Noe     Aguilera-Aguila               pled        guilty,     without      a     plea

agreement, to one count of reentering the United States after

having been deported as an aggravated felon, in violation of 8

U.S.C.      § 1326       (2006).          The    district        court     sentenced      Aguilera-

Aguila      to    twenty-four             months’          imprisonment.         Aguilera-Aguila

timely       appealed.           For       the     reasons          that   follow,     we       vacate

Aguilera-Aguila’s sentence and remand for resentencing.

                 Included in Aguilera-Aguila’s criminal history score

was    a    point      assessed       pursuant             to   U.S.    Sentencing     Guidelines

Manual      § 4A1.1(e)       (2009),             for       having      committed    the     instant

offense within two years after his release from custody for a

prior qualifying offense.                        On appeal, Aguilera-Aguila contends

that       his    sentence       is       procedurally             unreasonable      because      the

district         court    failed          to    give       adequate     consideration       to     the

United      States       Sentencing            Commission’s           proposed   elimination       of

the § 4A1.1(e) “recency” enhancement.

                 We     review        a        sentence         for     both     procedural        and

substantive reasonableness.                      Gall v. United States, 552 U.S. 38,

51 (2007).            In determining procedural reasonableness, this court

considers        whether     the          district         court      properly   calculated        the

defendant’s advisory guidelines range, considered the 18 U.S.C.

§ 3553(a) (2006) factors, analyzed any arguments presented by

the parties, and sufficiently explained the selected sentence.

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Id.   “Regardless of whether the district court imposes an above,

below,     or    within-Guidelines            sentence,      it    must    place    on    the

record     an    individualized            assessment    based      on    the   particular

facts of the case before it.”                  United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).                               An

extensive explanation is not required as long as the appellate

court is satisfied “‘that [the district court] has considered

the parties’ arguments and has a reasoned basis for exercising

[its] own legal decisionmaking authority.’”                           United States v.

Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v. United

States,    551     U.S.       338,    356    (2007)    (alterations        in   original),

cert. denied, 131 S. Ct. 165 (2010).

                When     a    claim    concerning       the       reasonableness     of     a

sentence is preserved, this court reviews the issue for an abuse

of discretion.            United States v. Lynn, 592 F.3d 572, 576, 579

(4th Cir. 2010).              If the district court abused its discretion,

this court will “reverse unless . . . the error was harmless.”

Id.   at   576.          Where       the    district    court      commits      error,    the

Government bears the burden of demonstrating that the error was

harmless.        Id. at 585.

                The Government contends that because Aguilera-Aguila

did not object at the sentencing hearing to the assessment of

the criminal history point under the USSG § 4A1.1(e) recency

enhancement,           this   court        should   review    for     plain     error     the

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adequacy of the district court’s consideration of the proposed

amendment to eliminate the recency enhancement.                      However, as the

Government   concedes,        Aguilera-Aguila         raised      the     issue    in   his

written   objections.          “[O]nce       a   party     raises   an    objection      in

writing, if he subsequently fails to lodge an oral on-the-record

objection,   the   error       is    nevertheless          preserved      for     appeal.”

United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir.

2003); see also Lynn, 592 F.3d at 583-84 (party may preserve its

sentencing   objections          through          written     papers      or      in-court

arguments prior to sentencing).                  By filing written objections to

the assessment of the single criminal history point under USSG

§ 4A1.1(e)   based       on    the   pending       elimination      of     the     recency

enhancement, Aguilera-Aguila preserved his issue for appeal.

           “Sentencing courts are statutorily required to state

their   reasons    for    imposing       a       particular      sentence.”         United

States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010).                            In this

case, the sentencing transcript is devoid of any explanation for

Aguilera-Aguila’s sentence.              Accordingly, we conclude that the

district court abused its discretion by failing to adequately

address Aguilera-Aguila’s objection and his sentence.

           Once    it     is     determined         that     a    court     abused      its

discretion, the next inquiry is whether the error was harmless.

Lynn, 592 F.3d at 576.           Under the harmless error standard, “the

[G]overnment may avoid reversal only if it demonstrates that the

                                             4
error    did     not      have        a    substantial           and     injurious       effect     or

influence      on     the       result”         and    this      court      can   say    “that    the

district    court’s          explicit            consideration         of    [the      defendant’s]

arguments        would      not       have        affected        the       sentence     imposed.”

Boulware, 604 F.3d at 838 (internal quotation marks omitted;

alterations in original).

            The       Government            cannot        meet    this      burden.       Aguilera-

Aguila’s total offense level was thirteen.                                  With the one-point

§ 4A1.1(e)        recency         enhancement,               Aguilera-Aguila            had     seven

criminal history points, which resulted in a Guidelines range of

twenty-four to thirty months.                             USSG ch. 5, pt. A (sentencing

table).     Had he not received a criminal history point under USSG

§ 4A1.1(e), he would have had six criminal history points, which

would     have      placed        him       in        criminal     history        category       III,

resulting      in     a     Guidelines           range      of    eighteen        to    twenty-four

months.        USSG       ch.    5,       pt.     A    (sentencing          table).       Aguilera-

Aguila’s twenty-four month sentence thus is at the bottom of the

Guidelines range with the recency enhancement, but at the top of

the Guidelines range if the recency enhancement is removed.                                       The

single criminal history point under USSG § 4A1.1(e) increased

Aguilera-Aguila’s            criminal            history      category        and      thus   had   a

significant       impact         on       his    Guidelines       range.          The    Government

cannot     demonstrate           that           Aguilera-Aguila’s            sentence     was     not

affected by the district court’s failure to explicitly consider

                                                      5
Aguilar-Aguila’s     objections      pertaining      to   the     proposed

Guidelines amendment to eliminate the recency provision because

it cannot show that, if the court had adequately considered the

proposed amendment, it would not have downwardly departed or

varied from the Guidelines range.

           Accordingly, we vacate Aguilera-Aguila’s sentence and

remand   for   resentencing   consistent   with   this    opinion.      We

dispense   with    oral   argument   because   the    facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                  VACATED AND REMANDED




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