                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4540


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARCUS MAYHEW CURRY,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:05-cr-00282-JAB-1)


Submitted:   April 25, 2014                 Decided:   May 2, 2014


Before KING, GREGORY, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.   Ripley Rand, United States Attorney, Terry M.
Meinecke, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Marcus Curry appeals the district court’s imposition

of 528 months’ imprisonment on numerous drug trafficking and

firearms counts on resentencing following our decision in United

States   v.    Simmons,      649       F.3d    237    (4th   Cir.    2011)    (en   banc).

Curry argues that his sentence is substantively unreasonable.

We vacate and remand for resentencing.

              We   review        a    sentence       for   reasonableness      “under    a

deferential        abuse-of-discretion             standard.”         Gall    v.    United

States, 552 U.S. 38, 41 (2007).                      This review entails appellate

consideration         of     both        the         procedural      and      substantive

reasonableness of the sentence.                       Id. at 51.       Curry does not

argue that the district court improperly calculated the advisory

Guidelines range or committed any other procedural error.                               See

id. at 49-51 (discussing procedural reasonableness).

              If there is no significant procedural error, we review

the   sentence      for     substantive          reasonableness,       “tak[ing]      into

account the totality of the circumstances.”                         Id. at 51.      If the

sentence is within or below the properly calculated Guidelines

range, we apply a presumption on appeal that the sentence is

substantively reasonable.               United States v. Yooho Weon, 722 F.3d

583, 590 (4th Cir. 2013).                 Such a presumption is rebutted only

if the defendant shows “that the sentence is unreasonable when

measured      against      the       § 3553(a)     factors.”         United    States   v.

                                               2
Montes-Pineda,      445     F.3d    375,    379     (4th      Cir.   2006)    (internal

quotation marks omitted).

            On appeal, Curry’s sole argument is that his sentence

is not substantively reasonable based an alleged discrepancy in

the imposition of his sentence.                 Counts 1, 2, 5, 6, 7, and 8 all

had the same advisory Guidelines range.                      However, Counts 5 and 8

were subject to a 60-month mandatory minimum sentence.                              After

recognizing Curry’s rehabilitation efforts, the district court,

without explanation, sentenced Curry to 60 months’ imprisonment

on Counts 5 and 8 but to a Guidelines range sentence of 168

months’ imprisonment for Counts 1, 2, 6, and 7, yielding the

same overall term of 528 months’ imprisonment that the court had

imposed during the prior sentencing.                     Curry alleges on appeal

that the district court varied downward on Counts 5 and 8 in

response    to    Curry’s     argument       that       he    rehabilitated       himself

following his initial sentencing and that this argument should

apply with equal to force to Counts 1, 2, 6, and 7, which are

arguably less serious offenses than Counts 5 and 8.

            Although        the     district        court       stated     during     the

sentencing hearing that a Guidelines sentence on Counts 1, 2, 6,

and 7 and on Counts 5 and 8 was appropriate, we conclude that

Curry     has    rebutted    the     presumption         of     reasonableness       that

attaches to the Guidelines sentence for Counts 1, 2, 6, and 7

because    the    district        court    did    not    explain     why     it   varied

                                            3
downward on Counts 5 and 8 but not on the other counts.                       See

United States v. Williams, 425 F.3d 478, 481 (7th Cir. 2005)

(stating that appellate court must “decide . . . whether the

district judge imposed the sentence he . . . did for reasons

that are logical and consistent with the [18 U.S.C. § 3553(a)

(2012)]   factors”).        The   district   court   did    not    identify   any

factors distinguishing Counts 5 and 8 from Counts 1, 2, 6, and 7

other   than   the   fact    that   Counts    5   and   8   were    subject    to

mandatory minimum sentences.          Therefore, we conclude that it is

necessary to remand to the district court for resentencing.                    In

so doing, we offer no opinion on what Curry’s proper sentence on

remand should be.

           Accordingly, we vacate the district court’s judgment

and remand for resentencing.            We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                        VACATED AND REMANDED




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