                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-5038


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RAPHEL SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00054-H-3)


Submitted:   September 24, 2013            Decided:    October 7, 2013


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


Affirmed in part, vacated in part, and remanded by unpublished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


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:

            This           case   returns      to       us   following        remand        for

resentencing.          Raphel       Smith    was    convicted,       following       a     jury

trial, of conspiracy to distribute and possess with intent to

distribute fifty or more grams of cocaine base (“Count One”), in

violation of 21 U.S.C. § 846 (2006); distribution of more than

five    grams    of    cocaine       base    and    a   quantity     of     marijuana       and

aiding and abetting the same (“Count Six”), and distribution of

a quantity of cocaine base and aiding and abetting the same

(“Count Fourteen”), both in violation of 21 U.S.C. § 841(a)(1)

(2006) and 18 U.S.C. § 2 (2006); and possession of a firearm in

furtherance of a drug trafficking offense (“Count Fifteen”), in

violation       of    18    U.S.C.      § 924(c)(1)(A)       (2006).        The     district

court    sentenced          Smith    to     concurrent       terms     of    235    months’

imprisonment on Counts One, Six, and Fourteen, and a consecutive

sentence of 60 months on Count Fifteen.                      On appeal, we affirmed

Smith’s convictions, but we concluded that the district court

committed procedural sentencing error in imposing a Guidelines

enhancement for managerial role in the offense.                              We therefore

vacated Smith’s sentence and remanded for resentencing.                               United

States v. Smith, 494 F. App’x 319, 322-23 (4th Cir. 2012), cert.

denied, 133 S. Ct. 961 (2013).

            On       remand,      the     district      court   sentenced          Smith    to

concurrent terms of 168 months’ imprisonment on Counts One, Six,

                                              2
and     Fourteen,      and    a    consecutive          sentence        of     60    months’

imprisonment on Count Fifteen.                   Smith appeals, challenging his

convictions     and    the    sentence       imposed      on    remand.         Because     we

again    find   procedural        sentencing        error,       we    affirm       in   part,

vacate in part, and remand for resentencing.

            In his appellate brief, Smith argues that the district

court erred in denying his motion for judgment of acquittal,

pursuant to Rule 29 of the Federal Rules of Criminal Procedure,

based on the sufficiency of the evidence to support each of his

counts of conviction.             He also challenges the district court’s

drug weight calculation under the Guidelines.                            We considered,

and rejected, both of these arguments in Smith’s first appeal.

See Smith, 494 F. App’x at 321-22.                      Thus, these arguments fall

within the scope of the “law of the case doctrine.”                            See L.J. v.

Wilbon, 633 F.3d 297, 308 (4th Cir. 2011) (explaining doctrine).

While a district court is permitted to deviate from the law of

the case in limited, exceptional circumstances, United States v.

Aramony,     166      F.3d    655,     661       (4th     Cir.        1999)    (describing

exceptions),       Smith     identifies       no    such       exception       that      would

permit    reconsideration         of   these       issues      in     this    appeal.       We

therefore conclude that these arguments are foreclosed by our

prior opinion.

            Smith also challenges the procedural and substantive

reasonableness of his sentence on remand.                        We review a sentence

                                             3
for reasonableness, applying “a deferential abuse-of-discretion

standard.”        Gall v. United States, 552 U.S. 38, 46 (2007).                                    We

“must     first     ensure         that      the       district      court        committed         no

significant procedural error,” including improper calculation of

the   Guidelines        range,        insufficient            consideration         of     the     18

U.S.C. § 3553(a) (2006) factors, and inadequate explanation of

the   sentence      imposed.               Gall,       552    U.S.    at     51;    see       United

States v.       Lynn,     592       F.3d     572,       575    (4th       Cir.     2010).           In

announcing a sentence, the district court is not required to

“robotically        tick           through       § 3553(a)’s              every     subsection,

particularly        when       imposing          a      within-Guidelines            sentence.”

United    States     v.    Powell,         650     F.3d      388,    395    (4th     Cir.      2011)

(internal quotation marks omitted).                            However, the court must

conduct    an     “individualized           assessment         justifying          the    sentence

imposed    and     rejection          of    arguments          for    a    higher        or    lower

sentence based on § 3553.”                       Lynn, 592 F.3d at 584 (internal

quotation marks omitted).                    “Where the defendant or prosecutor

presents nonfrivolous reasons for imposing a different sentence

than that set forth in the advisory Guidelines, a district judge

should    address       the    party’s       arguments         and    explain       why       he   has

rejected those arguments.”                   United States v. Carter, 564 F.3d

325, 328 (4th Cir. 2009) (internal quotation marks omitted).

The     district    court          must     provide          sufficient      explanation            to

“demonstrate       that       it    ‘considered          the    parties’          arguments        and

                                                   4
ha[d]     a    reasoned             basis        for        exercising           [its]        own        legal

decisionmaking           authority.’”                 Lynn,      592      F.3d    at     576    (quoting

Rita v.       United         States,        551       U.S.       338,      356    (2007)).                Such

explanation         is       required       to    “promote           the    perception          of       fair

sentencing” and to permit “meaningful appellate review.”                                              Gall,

552 U.S. at 50.

              Smith asserts that on resentencing, the court erred in

failing to provide a sufficient explanation for its denial of

his request for a downward variance.                               We agree.            In announcing

its     sentence,        the        court       provided         scant      explanation             of    its

reasons       for    denying              the     requested          variance           and     for       the

within-Guidelines sentence it ultimately selected.                                             The court

provided      only       a    brief       response          to   Smith’s     argument          that       his

limited criminal history warranted a downward variance sentence,

and it did not specifically address Smith’s assertion that his

criminal      history          score       was    exaggerated.              Nor     did       the        court

specifically         address              counsel’s         arguments        regarding              Smith’s

history        and           characteristics,                including            Smith’s            loving

relationships                with         his      family            and         post-incarceration

rehabilitation.               The court did not refer at any point to the

§ 3553(a) factors or indicate its calculus under those factors.

Thus,    we    conclude             the    court       failed        to    conduct       an     adequate

individualized               assessment          of        Smith’s        case     or     to        provide



                                                       5
sufficient      explanation       for    its    decision       to    reject       Smith’s

request for a variance.

              Procedural      sentencing       error,       including       failure    to

adequately explain the chosen sentence, is subject to review for

harmlessness.         Lynn, 592 F.3d at 576.           “Under that standard, the

government may avoid reversal only if it demonstrates that the

error    did    not    have   a    substantial        and     injurious      effect    or

influence      on   the   result,”      such    that    “we    can    say    with     fair

assurance that the district court’s explicit consideration of

the defendant’s arguments would not have affected the sentence

imposed.”       United States v. Boulware, 604 F.3d 832, 838 (4th

Cir. 2010) (internal quotation marks and alterations omitted).

Remand is appropriate when the absence of explanation prevents

us     from    “determin[ing]      why    the    district       court       deemed    the

sentence       it   imposed      appropriate”      or       “produce[s]       a    record

insufficient to permit even . . . routine review for substantive

reasonableness.”          Lynn,    592   F.3d    at     582    (internal      quotation

marks omitted).

              We conclude that the Government has not met its burden

to     establish      harmless     error.        While        the    record       clearly

establishes that the court considered at least some of Smith’s

arguments for a variant sentence, and the arguments Smith raised

were    not    particularly       compelling,     we    cannot       say    with     “fair

assurance” that the court would not have reached a different

                                          6
result had it more precisely addressed these arguments on the

record. 1   Perhaps more importantly in this case, the transcript

of the resentencing hearing is simply insufficient to permit

meaningful appellate review of the substantive reasonableness of

the sentence or to ensure that the court conducted the required

individualized assessment of Smith’s case.

            Because   we   conclude   there   exists   significant

procedural error in Smith’s sentence, we have no occasion to

address its substantive reasonableness. 2     See United States v.

Horton, 693 F.3d 463, 472 (4th Cir. 2012).         Accordingly, we

affirm Smith’s convictions, vacate Smith’s sentence, and remand



     1
        We recognize that the district court more clearly
expressed its reluctance to vary downward from the Guidelines
range at the original sentencing hearing when addressing
arguments similar to those raised by Smith at resentencing.
Even assuming these prior statements could be used to support
the sentence imposed on remand, they do not fully address the
nonfrivolous arguments raised by Smith during the resentencing
hearing.   Moreover, the court’s remarks at resentencing provide
no basis to infer that the court intended to adopt or
incorporate its prior rationale when refusing to vary downward
in resentencing Smith.
     2
       Insofar as Smith argues that the district court abused its
discretion in refusing to depart downward based on his argument
that his criminal history score was overstated, this issue is
not reviewable on appeal, as the record provides no basis to
question that the court properly understood its authority to
depart.   United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008).   Because we do not reach the substantive reasonableness
of the sentence, however, we again decline to express any view
on the propriety of the district court’s rejection of Smith’s
arguments for a downward variance.



                                 7
for     resentencing     to    permit       the   court     to    provide     an

individualized assessment and more thorough explanation of the

sentence imposed.        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.

                                                            AFFIRMED IN PART,
                                                             VACATED IN PART,
                                                                 AND REMANDED




                                        8
