                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-4650



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellant,

           versus


KEVIN BATTS, a/k/a K-Smooth,

                                                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:03-cr-00394-JRS)


Argued:   September 28, 2007                 Decided:   October 22, 2007


Before WILKINSON and KING, Circuit Judges, and Frederick P. STAMP,
Jr., Senior United States District Judge for the Northern District
of West Virginia, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Roderick Charles Young, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellant. Charles Manley Allen, Jr., GOODMAN, ALLEN & FILETTI,
Glen Allen, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
United States Attorney, Alexandria, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

      We are asked to review the reasonableness of a sentence that

deviates fifty-four percent from the advisory guidelines range.

This court has never upheld such a significant variance, and will

only do so if presented with a sufficient explanation. Because the

district court failed to adequately articulate reasons that justify

the   large     variance            imposed,    we     find    the    sentence    to    be

unreasonable.            We    thus    vacate       the    sentence    and   remand     for

resentencing.



                                               I.

      On August 3, 2004, a jury convicted Kevin Batts of conspiracy

to violate the Racketeer Influenced and Corrupt Organizations Act

(“RICO”),     see   18        U.S.C.   §   1962(d)        (2000),    and   conspiracy   to

distribute and possess with intent to distribute at least fifty

grams of cocaine base, commonly known as “crack,” see 21 U.S.C. §§

841, 846.     Batts was a member of the Third Ward Gang in Petersburg,

Virginia.     He was one of thirty-six gang members found guilty of

taking   part       in        the    above     conspiracies.           During    Batts’s

participation in the conspiracies, which occurred from 1998 to

2003, he ranged from fifteen to nineteen years old.

      In a pre-sentence report (“PSR”), the United States Probation

Office calculated that Batts had a total offense level of 36 and a

criminal history category of IV.                     This was based in part on its


                                               2
determination     that   Batts    was   personally     responsible    for   the

distribution of 774.27 grams of cocaine base.               At a sentencing

hearing on November 17, 2004, Batts challenged some of the findings

of the PSR.     In particular, he argued for a reduced offense level

since all but 4.77 grams of the above amount were related to

conduct that took place when he was a minor.            Batts contended that

the court should consider only his post-majority conduct, which

would have resulted in an offense level of 24.

     The district court rejected this argument and adopted the

offense level and criminal history category provided in the PSR.

These calculations yielded a sentencing guidelines range of 262-327

months imprisonment.1

     Because the law regarding sentencing was in flux at the time,

the district court, pursuant to our decision in United States v.

Hammoud, 378 F.3d 426 (4th Cir. 2004) (en banc), announced two

sentences.      The first sentence, 262 months imprisonment, was the

one actually imposed by the district court.            It was premised on the

sentencing guidelines being mandatory.           The second, or alternate,

sentence was based on the sentencing guidelines being advisory.

Under these circumstances, the court said it would have imposed a

sentence   of    120   months    imprisonment,   the    statutory    mandatory

minimum.   See 21 U.S.C. § 841(b)(1)(A)(iii).            The court explained


     1
      Neither party presently challenges the district court’s
calculation of Batts’s total offense level or applicable guidelines
range.

                                        3
that the alternate sentence was “in line with [Batts’s] argument”

about post-majority conduct, and that while Batts’s claim “lacks

merit because of the current state of the law, it doesn’t lack

logic.”

     On March 21, 2006, this court affirmed Batts’s convictions but

vacated his sentence in light of the intervening Booker decision,

which rendered the sentencing guidelines effectively advisory. See

United States v. Batts, 171 Fed. Appx. 977 (4th Cir. 2006).                     We

remanded      for   resentencing    “because    the    alternative      sentence

(treating the guidelines as advisory) . . . was shorter than the

sentence actually imposed.” Id. at 984.

     At a resentencing hearing on May 20, 2006, the district court

imposed the alternate sentence of 120 months imprisonment.                 This

represented a fifty-four percent deviation from the applicable

guidelines     range.     When     providing   its    rationale   for    such    a

significant variance, the court simply stated that it had “thought

about this at great length before” and “considered all of the facts

and circumstances” when reaching its decision.

     Claiming the sentence to be unreasonable, the government took

a timely appeal, which we now consider.



                                      II.

     Under United States v. Booker, 543 U.S. 220, 261 (2005), we

review    a   sentence   for     reasonableness.       This   “involves     both


                                       4
procedural and substantive components.”                United States v. Pyles,

482 F.3d 282, 288 (4th Cir. 2007) (quoting United States v.

Moreland, 437 F.3d 424, 434 (4th Cir. 2006)).                 “A sentence may be

substantively unreasonable if the court relies on an improper

factor   or   rejects      policies   articulated        by    Congress     or    the

Sentencing Commission.”          Moreland, 437 F.3d at 434.

      “A sentence may be procedurally unreasonable, for example, if

the district court provides an inadequate statement of reasons or

fails to make a necessary factual finding.”              Id.; United States v.

Davenport, 445 F.3d 366, 372 (4th Cir. 2006).                 Thus, when imposing

any   sentence,     but    particularly     one   that     deviates       from    the

applicable guidelines range, the district court “must articulate

the reasons for the sentence imposed.”            Moreland, 437 F.3d at 432;

United States v. Battle, --- F.3d. ---, 2007 WL 2484936, at *7 (4th

Cir. 2007).   As we have repeatedly recognized, the “explanation of

a variance sentence must be tied to the factors set forth in

§   3553(a)   and   must    be    accompanied     by    findings     of    fact    as

necessary.”    Moreland, 437 F.3d at 432; United States v. Baucom,

486 F.3d 822, 828 (4th Cir. 2007); United States v. Hampton, 441

F.3d 284, 287 (4th Cir. 2006).         While this does not mean that the

sentencing court must discuss each factor “in checklist fashion,”

Moreland, 437 F.3d at 432, or “conduct a § 3553(a) roll call,”

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it

does mean that “the record must reflect that the court adequately


                                        5
and properly considered the § 3553(a) sentencing factors” when

arriving at a sentence, United States v. Ruhbayan, --- F.3d ---,

2007 WL 2215955, at *9 (4th Cir. 2007) (quoting United States v.

Eura, 440 F.3d 625, 632 (4th Cir. 2006)).

     Taken   together,   our   “overarching   standard   of   review” is

“whether the sentence was selected pursuant to a reasoned process

in accordance with law, in which the court did not give excessive

weight to any relevant factor, and which effected a fair and just

result in light of the relevant facts and law.”      United States v.

Green, 436 F.3d 449, 457 (4th Cir. 2006); United States v. Tucker,

473 F.3d 556, 561 (4th Cir. 2007).

     When considering a sentence’s reasonableness, we “review the

district court’s legal conclusions de novo and its factual findings

for clear error.” Hampton, 441 F.3d at 287.



                                  III.

     The government contends that the variance sentence imposed by

the district court is unreasonable.      For the reasons that follow,

we agree.2


     2
      Batts argues that the sentence should be vacated only if it
constitutes plain error, because the government waived any
objection to the alternate sentence. We find this assertion to be
without merit.     As we have previously held, the government
preserves an objection to a variance sentence by “arguing for a
sentence within the Guidelines range throughout the sentencing
hearing.”   United States v. Curry, 461 F.3d 452, 459 (4th Cir.
2006); see also United States v. Clark, 434 F.3d 684, 686 n.1 (4th
Cir. 2006).     In this case, the government has consistently

                                   6
     Batts’s sentence of 120 months imprisonment represents a

fifty-four percent deviation from the applicable guidelines range.

When previously confronted with such a substantial variance, we

have held that “we must more carefully scrutinize the reasoning

offered   by    the   district    court      in    support   of   the    sentence.”

Moreland,   437    F.3d    at   434.      This     is   because    the   Sentencing

Guidelines,     though     advisory    after      Booker,    still   represent     a

reasoned sentencing process.           See Rita v. United States, 551 U.S.

___, 127 S. Ct. 2456, 2463-65 (2007); Johnson, 445 F.3d at 341-44.

Thus, exercises of discretion have to be supported by adequate

explanations.      See 18 U.S.C. § 3553(c)(2) (“The court, at the time

of sentencing, shall state in open court the reasons for its

imposition of the particular sentence, and, if the sentence is not

[within   the     guidelines     range],     the    specific      reason   for   the

imposition of a [non-guidelines] sentence. . . .”); Rita, 127 S.

Ct. at 2468-69.

     In this case, however, the district court provided little

explanation for its decision, let alone the sort of justification

we hope would accompany such a substantial deviation from the

guidelines range.         The court simply stated that it had “thought

about this at great length before” and “considered all of the facts

and circumstances.”        The court’s failure to articulate its reasons


advocated a sentence within the applicable guidelines range,
including at the resentencing hearing. Thus, we reject the notion
that it failed to preserve its objection.

                                         7
leaves us in the dark as to whether its reasoning is properly “tied

to the factors set forth in § 3553(a).”       Moreland, 437 F.3d at 432.

     For example, it is not clear whether (or, if so, how) the

district court considered the “need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct.”      See 18 U.S.C. § 3553(a)(6).      As

noted earlier, Batts was one of thirty-six Third Ward Gang members

convicted of similar crimes relating to the illegal activity of the

organization.     Of those thirty-six, however, Batts was one of only

five who did not plead guilty and instead went to trial.          Notably,

his four co-defendants at trial--Antoine Allen, Mario Allen, Kevin

Langston,   and   Christopher   Brown--have    been   sentenced   to   life

imprisonment, life imprisonment, 260 months imprisonment, and 240

months imprisonment, respectively.      As for the thirty-one members

who pled guilty, each was initially sentenced within his respective

guidelines range: two defendants received sentences below 120

months incarceration, and the other twenty-nine received sentences

ranging from 133-384 months imprisonment.3

     Thus, when compared to defendants “who have been found guilty

of similar conduct,” Batts’s sentence is not only significantly

lower than those of his trial co-defendants but also lower than the


     3
      Though initially sentenced within their applicable guidelines
ranges, many of these defendants have subsequently received
sentence reductions for cooperating with the government. See Fed.
R. Crim. P. 35(b). These figures represent the sentences initially
imposed, before any reduction pursuant to Rule 35.

                                   8
sentences imposed on most of the gang members who pled guilty.

This would seemingly merit an explanation by the district court,

especially since similarly situated defendants who go to trial

typically receive longer sentences than those who plead guilty.

See, e.g., United States v. Khan, 461 F.3d 477, 499-501 (4th Cir.

2006) (noting that a disparity in sentences between those who went

to trial and those who pled guilty is not necessarily unwarranted).

However, no such explanation was explicitly provided.           Given the

lack of discussion on the matter, it appears that the district

court    failed   to   consider   whether   the   disparity   created   by

sentencing Batts more leniently was unwarranted.        This failure to

adequately consider § 3553(a)(6), as required by Congress, renders

the sentence unreasonable.        See United States v. Clark, 434 F.3d

684, 686 (4th Cir. 2006) (finding unreasonable a sentence given

“wholly without regard for whether the sentence thereby imposed

would result in sentencing disparities”).

        Another factor that received incomplete consideration is the

“history and characteristics of the defendant,” specifically his

age during the conspiracies.      See 18 U.S.C. § 3553(a)(1).    When the

district court stated that it had “thought about this at great

length before,” it presumably was referring to Batts’s first

sentencing hearing, where the court initially determined the then-

alternate sentence of 120 months imprisonment.         But even in that

instance, the district court only explained that it was doing so


                                     9
“in line with [Batts’s] argument.”    This reference, in turn, was

presumably to Batts’s claim that he should have a lower offense

level because only a small fraction of the drugs he was found

responsible for distributing were related to post-majority conduct.

     This bare reference, however, cannot be deemed sufficient. On

the one hand, courts have traditionally weighed a defendant’s age

when meting out punishment.   See 18 U.S.C. § 3553(a)(1).   To the

extent that much of Batts’s drug activity occurred while he was a

minor, a variance of some sort might be considered.   On the other

hand, the fact that Batts continued the same illegal activity after

he had reached the age of majority and spent time in juvenile

detention may indicate that he should not be afforded such a

significant break, since it is not clear that his coming of age has

changed his unlawful conduct.    Thus, at a minimum, the district

court should have engaged in a more detailed examination as to

whether Batts’s argument about post-majority conduct justifies such

a significant variance from the guidelines range.   This it failed

to do.

     The task of reviewing a sentence’s reasonableness should not

be akin to reading tea leaves.    In order for appellate courts to

adequately review the reasonableness of a sentence, the reasons

underlying a district court’s decision should be clear.   This will

also produce the added benefits of bolstering the “public’s trust




                                 10
in   the   judicial         institution”       and   helping       the    “Guidelines

constructively evolve over time.”               Rita, 127 S. Ct. at 2468-69.

      While we emphasize that a sentencing court need not engage in

an exhaustive review of every § 3553(a) factor in painstaking

detail,    we   must    be    confident    that      the   court    considered   the

appropriate and relevant factors in a reasoned fashion.                      In this

case,   the     need   for    an   adequate      explanation       is    particularly

important in light of the degree of deviation from the applicable

guidelines range and the concerns involving the § 3553(a) factors

we note above.         See Moreland, 437 F.3d at 434 (holding that the

“farther the court diverges from the advisory guideline range, the

more compelling the reasons for the divergence must be”).

      Because the district court did not provide sufficient reasons

to   justify    such    a    substantial       deviation    from    the    applicable

guidelines range, we find Batts’s sentence to be unreasonable.

Thus, we vacate the sentence and remand for resentencing.



                                                            VACATED AND REMANDED




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