                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4847


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

SHERMAN GODWIN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00350-FL-1)


Submitted:   November 30, 2010              Decided:   December 28, 2010


Before WILKINSON and KING, 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Vacated and remanded by unpublished per curiam opinion.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,
Anne M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sherman       Jermarr    Godwin      pled         guilty      to        unlawful

possession    of     a    firearm    by    a    convicted       felon,         18     U.S.C.

§ 922(g)(1) (2006), and was sentenced to a term of seventy-one

months   imprisonment,       a   variance      above    the     advisory        guideline

range.     Godwin appeals his sentence, arguing that the district

court    committed       significant      procedural         error   by     failing         to

consider an upward departure before imposing a variance sentence

above the guideline range under 18 U.S.C. § 3553(a) (2006).                                For

the reasons explained below, we vacate the sentence and remand

for resentencing.

            The    presentence      report     did     not    identify      any       factor

that might warrant a sentence outside the guideline range of 37-

46 months and, at sentencing, both parties requested a sentence

within the range.         However, the district court decided to impose

a variance sentence above the range for reasons that focused

heavily on Godwin’s criminal record and the lenient treatment he

had   previously      received.        After     the     sentence         was       imposed,

Godwin’s     attorney      stated   that       the   sentence        amounted         to     a

departure.     The district court disagreed, explaining that it had

considered the guidelines and the § 3553(a) sentencing factors,

but that Godwin’s record and the need to protect the public

required a sentence above the guideline range.                       Defense counsel

immediately lodged an objection.

                                           2
            We review a sentence, “whether inside, just outside,

or     significantly        outside     the      Guidelines       range,”       under    a

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

States, 552 U.S. 38, 41 (2007).                  In conducting this review, we

must    first     ensure     “that     the       district    court    committed         no

significant procedural error, such as failing to calculate (or

improperly      calculating)       the    Guidelines        range,    treating          the

Guidelines      as    mandatory,      failing      to   consider     the    §    3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence[.]”                          Id. at

51.     If the sentence is free from procedural error, this court

then reviews it for substantive reasonableness.                       Id.        Because

Godwin objected in the district court to the above-guideline

sentence,    he       has   preserved    the      issue     for   appeal.         United

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).                          Thus, if a

procedural error occurred, reversal may be appropriate unless

the error was harmless.          Id.

            Godwin relies on published authority from this court

which states that, before varying from the guideline range, the

sentencing court must first determine whether a departure is

warranted under the guidelines and, if so, vary only if the

departure is inadequate to achieve a reasonable sentence.                               See

United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006);

see also United States v. Fancher, 513 F.3d 424, 427 n.1 (4th

                                             3
Cir.) (citing Moreland), abrogated in part by Irizarry v. United

States,     553        U.S.    708    (2008)      (holding          that    variance       does   not

require prior notice).                 He acknowledges that a later argued but

unpublished Fourth Circuit case suggests that this process may

not be necessary after Gall, citing United States v. Hawes, 309

F. App’x 726, 732 n.2 (4th Cir. 2009).

                 The    government,         also       citing       Hawes,       argues    that    the

procedure set out in Moreland is no longer necessary because it

is inconsistent with Gall.                       Principally, the government relies

on    United      States       v.     Evans,      526    F.3d       155     (4th    Cir.),       cert.

denied, 129 S. Ct. 476 (2008), which held that a sentence above

the    guideline         range       may    be     based       on    either       the     guidelines

“departure        provisions”          or    “on       other    factors.”           Id.     at    164.

Evans is distinguishable because the district court in Evans

found a sentence above the range justified both as a departure

(under several guideline departure provisions) and a variance

under § 3553(a).

                 Although in this case the district court focused on

Godwin’s prior crimes and lenient treatment in the state courts

as    the   primary           basis    for     the      variance,          the    court     did   not

consider whether a departure under U.S. Sentencing Guidelines

Manual      § 4A1.3,          p.s.    (2008),        would      have       been    sufficient      to

achieve      a    reasonable          sentence.           Because          the    court     did   not

consider a departure, it avoided having to either give advance

                                                   4
notice to Godwin or continue the hearing so that he could be

prepared to contest a departure.                      See Irizarry, 128 S. Ct. at

2203.       The court also avoided having to follow the incremental

departure procedure required under United States v. Cash, 983

F.2d 558, 561 (4th Cir. 1992).                            To this extent, Godwin was

prejudiced      by    the    court’s      failure          to   consider    a    departure.

Because      Moreland       requires      the       district     court     to    consider   a

departure before it considers a variance, the court’s failure to

do     so    constituted       a    significant             procedural     error.        The

government has not shown that the error was harmless.

              We     therefore      vacate          the    sentence      imposed    by   the

district court and remand for resentencing.                             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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