                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4095


UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

           v.

JOSE MANUEL-CALIXT MENDEZ,

                Defendant-Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:09-cr-00052-BO)


Argued:   May 15, 2012                     Decided:   July 5, 2012


Before WILKINSON and AGEE, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Vacated and remanded by unpublished opinion. Judge Agee wrote
the opinion, in which Judge Wilkinson and Judge Hudson
concurred.


ARGUED: Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES
ROSE, Raleigh, North Carolina, for Appellant. Jennifer E. Wells,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
AGEE, Circuit Judge:

             Jose Manuel-Calixt Mendez challenges the procedural

and   substantive    reasonableness         of    his     sentence,    but    not    his

underlying    convictions.          Because      the    district      court   plainly

erred in failing to consider the factors listed in 18 U.S.C.

§ 3553(a) or to state on the record a basis for the sentence it

imposed, we vacate Mendez’ sentence and remand this case for

resentencing.



                                          I.

            Mendez    pleaded      guilty,       without     the   benefit      of     a

written agreement, to several drug-related charges arising from

his   participation    in    a     multi-party,         multi-year      (2001-2009),

multi-state conspiracy to distribute cocaine powder and cocaine

base (“crack”).       Based on those transactions, a pre-sentence

report (“PSR”) provided Mendez should be accountable for 551.6

grams of cocaine base, 52 kilograms of cocaine, and 5,000 pounds

of marijuana, which totaled a marijuana equivalency of 23,700

kilograms    under   the    2009    United       States    Sentencing     Guidelines

Manual (U.S.S.G.).         The PSR also described Mendez as a manager

of criminal activity involving five or more participants because

he oversaw co-conspirators who would broker deals and convert

cocaine to cocaine base under Mendez’ direction.                      After a three-

level   increase     due    to     his    managerial        or   supervisory        role

                                         - 3 -
(U.S.S.G.    §   3B1.1(b)),   and   a    three-level   downward        adjustment

based on acceptance of responsibility (id. § 3E1.1(b)), the PSR

stated a total offense level of 36, which, when combined with

his criminal history category of I, resulted in a recommended

Sentencing Guidelines range of 188 to 235 months’ imprisonment.

            After    considering    Mendez’      objections      to    the   drug

weight      calculation    and      the       managerial/supervisory         role

enhancement, the district court “le[ft] the report as written,”

which made Mendez’ advisory Guidelines range 188 to 235 months’

imprisonment as to each of the grouped offenses.                 After hearing

respective arguments from counsel, the district court stated its

entire sentencing decision as follows:

            All right. I’ll impose a sentence of 210
            months on counts one, four, five, two, three
            and six concurrent in the custody of the
            United States Bureau of Prisons. A term of
            supervised release of five years on those
            six counts, concurrent. Restitution is not
            appropriate. Six hundred dollars in special
            assessment. He’s given credit for time
            served. That’s all.

J.A. 73. Mendez noted a timely appeal, and we have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                        II.

            Mendez    challenges     the      procedural   and        substantive

reasonableness of his sentence, both of which we review under a

deferential abuse of discretion standard. United States v. Bell,

                                    - 4 -
667 F.3d 431, 440 (4th Cir. 2011).                 “We review factual findings

for clear error, and legal conclusions de novo.”                        United States

v. Davis, 679 F.3d 177, 2012 WL 1608607, *4 (4th Cir. May 9,

2012) (slip copy).



                                          III.

            We first consider            Mendez’       allegations of procedural

error. Then we consider the question whether the district court

committed    reversible        plain     error    in    failing    to   evaluate      the

§ 3553(a) factors at all during sentencing proceedings.                        Because

we answer that question in the affirmative, we decline to reach

Mendez’ substantive reasonableness claim.



                                           A.

            Mendez       argues     that    the        district    court     erred    in

adopting     the   PSR     calculation       of    drug     weight      over   Mendez’

challenge.     Reviewing the district court’s factual findings as

to   the      application           of     the     Guidelines——including              the

determination      of    the    relevant        quantity    of     drugs——for       clear

error,   United    States      v.   Fletcher,      74     F.3d    49,   55   (4th    Cir.

1996), we are not “left with the definite and firm conviction

that a mistake has been committed.”                United States v. Stevenson,

396 F.3d 538, 542 (4th Cir. 2005).



                                         - 5 -
               For sentencing purposes, the Government must establish

the amount of drugs involved by a preponderance of the evidence.

United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).

“[W]here there is no drug seizure or the amount seized does not

reflect the scale of the offense, the court shall approximate

the quantity of the controlled substance.”                     United States v.

D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994); see also § 2D1.1,

cmt. n.12 (stating that a district court is not required to

precisely calculate attributable drug weights, but may instead

approximate drug quantity).

               Put simply, that is precisely what the district court

did in setting the drug weight based on the PSR calculations.

Mendez       bore     the     burden     of   establishing     that   the      PSR’s

calculation         was     incorrect,    but     offered   nothing——other      than

broadly crafted objections——to the reliability of the testimony

presented at trial.            Mendez did not cite any specific evidence

that       might    suggest   the   witnesses      lacked   credibility   or    were

providing duplicative evidence as to drug weight.1 Given Mendez’


       1
       In addition, Mendez’ objection to the drug amount set
forth in paragraph 23 did not assert the information was
unreliable for any specific reason, only that it was hearsay
from a co-defendant. However, not only can “hearsay alone . . .
provide sufficiently reliable evidence of quantity[,]”   United
States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992), but a
“trial court may properly consider uncorroborated hearsay
evidence that the defendant has had an opportunity to rebut or
explain.” United States v. Terry, 916 F.2d 157, 161 (4th Cir.
(Continued)
                                          - 6 -
oblique, nonspecific objections to the higher drug weight, we

are not left with the definite and firm conviction that the

district   court   erred   in   adopting   the   PSR’s   drug   weight

calculation.2




1990) (citation omitted). See also United States v. Burns, 990
F.2d 1426, 1439 (4th Cir. 1993) (“The settled law of this
circuit   recognizes that   the  testimony  of  a   defendant’s
accomplices, standing alone and uncorroborated, can provide an
adequate basis for conviction.”). The district court thus
properly exercised its discretion in finding Mendez’ objection
insufficient to upset that transaction in the drug weight
calculation.
     2
       We briefly address two other points raised by Mendez.
First, without citing to any authority, Mendez claims that the
Government should have been       required to call the lead
investigator as a witness rather than proffer to the district
court what his testimony would be.     As we observed in United
States v. Bell, the Guidelines do not require that drug weight
be proven by a particular method so long as the district court
has the opportunity to consider objections and assess the
reliability of evidence supporting the fact at issue. 667 F.3d
440, 441 (4th Cir. 2011). See also Terry, 916 F.2d at 162
(“Without an affirmative showing the information is inaccurate,
the court is free to adopt the findings of the [PSR] without
more specific inquiry or explanation.      The burden is on the
defendant to show the inaccuracy or unreliability of the
[PSR].”)(internal quotation marks and citation omitted).
     Mendez also argues that the PSR improperly relied on the
drug quantity base offense level under the 2009 cocaine base to
cocaine ratio rather than applying the 2010 amendments to the
ratio. Because Mendez did not raise that claim below, we review
it for plain error. United States v. Lynn, 592 F.3d 572, 577-78
(4th Cir. 2010).
     The Government admits the 2010 Guidelines should have been
used, but contends that the offense level would have been the
same under the 2010 Guidelines as it was under the 2009
Guidelines. We agree. Under the 2010 amendments, Mendez’ base
offense level would not be different. To be sure, the 2010
amendments did alter the drug equivalency tables for cocaine
(Continued)
                                - 7 -
                                       B.

            U.S.S.G. § 3B1.1 provides that an offense level may be

increased by three levels “[i]f the defendant was a manager or

supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise

extensive.”       In the district court, Mendez challenged the full

three-level enhancement by contending that he was a “mule” on

one side of the conspiracy and a leader on the other.                        On

appeal,     Mendez’     argument    has     evolved——he     now   appears    to

challenge     the     application    of     any   enhancement     pursuant   to

§ 3B1.1.     We need not consider whether this argument has been

properly preserved, however, because even assuming it was, the

district court did not clearly err in applying the enhancement.

            The     §    3B1.1(b)    supervisory-role        enhancement     is

appropriate based on finding the presence of some or all of the

following     seven     factors:    “the    exercise   of   decision    making

authority, the nature of participation in the commission of the

offense, the recruitment of accomplices, the claimed right to a




base. Under the new equivalencies, however, Mendez would be
responsible for 14,637.76 kilograms of marijuana, which would
still place his base offense level at 36. See § 2D1.1(c)(2)
(setting an offense level of 36 for offenses involving “[a]t
least 10,000 KG but less than 30,000 KG mari[j]uana”).
Accordingly, Mendez cannot show that this error affected his
substantial rights such that it constitutes reversible plain
error.


                                     - 8 -
larger     share    of     the    fruits        of   the   crime,    the   degree     of

participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control and

authority exercised over others.” Cmt. n.4 (emphasis added). The

emphasized factors are present in Mendez’ case, as the record

shows that Mendez exercised great control over a middleman in

the conspiracy, directing the middleman’s dealing and actively

negotiating        between        participants        in    the     conspiracy       and

distributing large levels of cocaine and crack over a lengthy

period of time.            Mendez does not challenge any of the PSR’s

statements regarding his leadership role over the middleman with

regard to the Robeson County side of the operation.3                       Instead, he

attempts    to     claim    the    PSR     is    inconsistent       because   it    also

describes him as acting as a “mule” early in the conspiracy with

regard to another component of the conspiracy.                         Reviewing the

PSR’s    description       of    the   offense       conduct,     however,    provides


     3
       To the extent that Mendez argues that the enhancement is
not applicable because he supervised only one individual, that
argument has been expressly rejected by the commentary, U.S.S.G.
§ 3B1.1 cmt. n.2 (2010) (“to qualify for an adjustment under
this section, the defendant must have been the organizer,
leader, or supervisor of one or more other participants.”)
(emphasis added), a fact which we have previously recognized,
see United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009)
(“The Sentencing Commission has clarified in an Application Note
to § 3B1.1 that in order to qualify for an enhancement, the
defendant must have been the organizer or leader of ‘one or more
other participants’ . . . .”).


                                         - 9 -
sufficient information on which the district court could apply

this enhancement; Mendez is manufacturing inconsistencies that

simply do not exist.              On this record, we hold that the district

court    did    not    clearly       err    in       finding     that       the    three-level

enhancement      was     appropriate        based      on    a   preponderance         of    the

evidence.



                                                C.

               Mendez’       final     challenge            is    to      the      substantive

reasonableness of his sentence.                        Before we can evaluate his

substantive      reasonableness            claim,      however,        we    must    find    the

sentence procedurally reasonable. See United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (noting that we may consider

the substantive reasonableness of the sentence “[i]f, and only

if, we find the sentence procedurally reasonable.”); see also

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

the appellate court finds a sentence procedurally reasonable, it

then    moves    to    the    second    step,        in    which     it     consider[s]      the

substantive      reasonableness            of    the      sentence      imposed      under    an

abuse-of-discretion            standard.”)             (internal          quotation     marks

omitted).

               Although      we      have       rejected         above       the    arguments

articulated on appeal by Mendez, an obvious procedural error is

reflected in the record: the complete absence of explanation by

                                            - 10 -
the district court for the sentence imposed.                   We review the

issue for plain error, see United States v. Delgado, 672 F.3d

320, 328-29 (5th Cir. 2012) (“the plain-error test has long been

applied to unpreserved and unpresented errors”), and therefore

consider whether the district court committed error; that was

plain;    and    affected   Mendez’     substantial   rights.       See   United

States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012).

               This court has specified in unmistakable terms that a

sentencing      court   “must   state    in   open   court    the   particular

reasons supporting its chosen sentence.” Carter, 564 F.3d at 328

(internal quotation marks omitted); see also Lynn, 592 F.3d at

576.     In so doing, the sentencing judge “must place on the

record an ‘individualized assessment’ based on the particular

facts of the case before it[,]” which “set[s] forth enough to

satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal

decisionmaking authority. . . .” Carter, 564 F.3d at 328, 330.

               This is not an onerous burden.             A sentencing court

need     not     “robotically    tick     through     §      3553(a)’s    every

subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006).       “Nor need the district court articulate in a vacuum

how each § 3553(a) factor influences its determination of an

appropriate sentence.” United States v. Carty, 520 F.3d 984, 992

(9th Cir. 2008).         Nevertheless, “the district judge, not an

                                   - 11 -
appellate court, must make an individualized assessment based on

the facts presented to him.”                Carter, 564 F.3d at 329 (internal

quotation marks omitted).              Where, as here, a defendant asks for

a    sentence     lower    than      that   which   the   district    court    finds

appropriate, the district court                has to say       something     on the

record to establish a basis for its conclusion in imposing the

criminal sentence.

               Despite the previous guidance this Court has provided

on this precise issue, see id. at 330 (vacating the judgment and

remanding for sentencing where this very district court failed

to   provide      an    individualized      rationale     for   a   sentence),   the

district court here committed plain error by failing to provide

even       a   single    word   of     commentary    regarding      the   § 3553(a)

factors.4        We again repeat: Appellate courts are not in the



       4
       The fact that Mendez failed to raise such an important and
apparent error is of no moment: it is plainly obvious, and “the
trial judge and prosecutor were derelict in countenancing it,
even absent the defendant’s timely assistance in detecting it.”
United States v. Frady, 456 U.S. 152, 163 (1982) (stating when
plain error exists). The district court sentenced Mendez,
without any comment, to 210 months’ imprisonment——roughly the
average of the polar recommendations of the parties, but
definitely a higher sentence than he requested. While the
sentence thus happened to land within the Guidelines range, it
was also clearly higher than the specific sentence Mendez sought
and left Mendez’ nonfrivolous arguments for a lower Guidelines-
range sentence unaddressed. Although there would appear to be
sufficient bases in the record upon which the district court
could reach the sentencing decision it decreed, under these
circumstances, we conclude the district court’s error seriously
(Continued)
                                        - 12 -
business of “guess[ing] at the district court’s rationale,” or

sleuthing for “clues that might explain a sentence.” Id. at 329-

30.     Moreover,     contrary      to    the     Government’s      contention,    we

simply cannot rely on the Government’s arguments as support for

the district court’s unknown ultimate sentencing decision. See

id. (rejecting Carter’s argument to “presume” that the district

court   adopted      his    arguments      or     “silently   adopted      arguments

presented by a party”).              Rather, the sentencing judge “must

place on the record an ‘individualized assessment’ based on the

particular facts of the case before it[,]” which “set[s] forth

enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his

own   legal    decisionmaking       authority. . . .”         Id.    at    328,   330

(emphasis added).

              For these reasons, the district court plainly erred in

a manner affecting Mendez’ substantial rights in wholly failing

to evaluate the § 3553(a) factors during sentencing proceedings.



                                             IV.

              We   note    that   this    procedural    derailment        might   have

been corrected at any number of junctures.                The Government might



affected the fairness of the sentencing proceeding by the total
absence of any explanation.


                                         - 13 -
have directed the district court to the error immediately after

the   district    court    pronounced       Mendez’   sentence.     Appellant’s

counsel, had she only presented the issue on appeal, could have

cabined   our     review    to     the    (more-easily-satisfied)     abuse   of

discretion standard.         To be sure, someone other than this Court

should have flagged such a fundamental error.                  That said, the

error   here     is   so   plain    and    deleterious   to   the   defendant’s

substantial rights that we must vacate and remand this case for

resentencing so that the district court can conduct a proper

§ 3553(a) analysis and provide a basis for the sentence imposed.



                                                         VACATED AND REMANDED




                                         - 14 -
