United States v. Carter

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 08-4643

JACK DALE CARTER,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(7:07-cr-00111-BO-2)

Argued: March 27, 2009

Decided: April 27, 2009

Before WILKINSON, MOTZ, and GREGORY,

Circuit Judges.

Vacated and remanded by published opinion. Judge Motz

wrote the opinion, in which Judge Wilkinson and Judge Greg-

ory joined.

COUNSEL

ARGUED: Jennifer P. May-Parker, OFFICE OF THE

UNITED STATES ATTORNEY, Raleigh, North Carolina,

for Appellant. Terry F. Rose, Smithfield, North Carolina, for

2 UNITED STATES v. CARTER

Appellee. ON BRIEF: George E. B. Holding, United States

Attorney, Anne M. Hayes, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,

North Carolina, for Appellant.

UNITED STATES v. CARTER 3

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Jack Dale Carter pleaded guilty to possessing a firearm

after a felony conviction in violation of 18 U.S.C. § 922(g)(1)

(2006). Carter’s properly-calculated advisory Guidelines sen-

tencing range is 37 to 46 months, but the district court sen-

tenced him to a term of probation. The Government appeals,

arguing that Carter’s sentence is procedurally and substan-

tively unreasonable. Because the district court failed to state

any particularized basis to support its chosen sentence, we

cannot uphold the sentence as procedurally reasonable or

determine its substantive reasonableness. Accordingly, we

vacate the sentence and remand for further proceedings.

I.

Carter’s conviction arises out of his friendship with Preston

Goforth, Jr., and Janet Solomon, a married couple who owned

a federally-licensed firearm dealership. After learning in

December 2005 that this dealership sold short-barreled rifles

at gun shows in violation of the National Firearms Act, 26

U.S.C. §§ 5845(a), 5861 (2006), the Bureau of Alcohol,

Tobacco, Firearms, and Explosives ("ATFE") began an inves-

tigation. Undercover ATFE agents purchased eight short-

barreled rifles from the dealership during seven controlled

transactions. In an attempt to evade federal requirements, the

dealership sold the firearms in two pieces.

To assist Goforth and Solomon during Goforth’s terminal

illness, Carter worked for the dealership at certain gun shows

in North Carolina. On December 16, 2006, Carter assisted

Solomon in the sale of two short-barreled rifles to an under-

cover ATFE agent. On May 26, 2007, Carter assisted in the

sale of an additional short-barreled rifle.

Approximately four months later, on October 3, 2007, Car-

ter consented to a search by law enforcement officers of his

4 UNITED STATES v. CARTER

home in Gold Hill, North Carolina. The officers found nine

firearms inside an unlocked gun safe in Carter’s bedroom.

Carter claimed that the weapons belonged to his son.

The Government charged Carter with one count of conspir-

acy to violate the National Firearms Act, two counts of trans-

ferring a firearm in violation of the National Firearms Act

(one count for each transaction), and two counts of being a

felon in possession of a firearm (again, one count for each

transaction). In exchange for the Government’s agreement to

dismiss the first four counts of the indictment, Carter pleaded

guilty to being a felon in possession of a firearm in connec-

tion with the May 26, 2007 transaction.

In a presentence investigation report ("PSR"), a probation

officer calculated Carter’s offense level as 21. The officer

suggested a base offense level of 20 because 26 U.S.C.

§ 5845(a) regulates short-barreled rifles and federal law pro-

hibits felons, like Carter, from possessing firearms. See U.S.

Sentencing Guidelines Manual § 2K2.1(a)(4)(B) (2007). The

officer then recommended a four-level enhancement because

the "offense," i.e. "the offense of conviction and all relevant

conduct," id. § 1B1.1 cmt. n.1, involved twelve guns, id.

§ 2K2.1(b)(1)(B), and a three-level reduction for acceptance

of responsibility, id. § 3E1.1(b). Finally, the probation officer

calculated Carter’s criminal history as category I. (Because

the felony convictions that formed the basis for Carter’s

felon-in-possession charge took place in 1986, they garnered

him no criminal history points. Id. § 4A1.2(e).) These calcula-

tions yielded an advisory Guidelines range of 37 to 46 months

imprisonment.

In the district court, Carter raised two principal objections

to the PSR. First, he argued that the guns found in his home

did not belong to him, and therefore the court should not use

them as a basis for enhancing his sentence by four levels. The

district court disagreed, finding that the Government estab-

lished Carter’s responsibility for those weapons. Second, Car-

UNITED STATES v. CARTER 5

ter contended that on May 26 he had not possessed a short-

barreled rifle but only two component pieces of such a

weapon. The court similarly rejected this argument and

adopted "the base offense level and the specific offense

characteristic[s]" set forth in the PSR.

The court then invited Carter to argue for a below-

Guidelines sentence, recognizing that the 37- to 46-month

range was "just an advisory level." After listening, without

comment, to a short argument from defense counsel request-

ing a variance, the district court asked the probation officer

for the sentencing range for an offense level 12, criminal his-

tory category I crime. The probation officer replied that such

a range would be 10 to 16 months. The court further inquired,

"[i]sn’t that how it would work out if everything was accord-

ing to the defendant’s presentation?"1 After the probation offi-

cer agreed, the district court announced that it intended to

depart to this sentencing range. Following brief additional

argument, the court adopted a downward variance and sen-

tenced Carter to a five-year term of probation, 200 hours of

community service, and a $1000 fine.

The Government noted a timely appeal of this sentence.

II.

In reviewing any sentence, "whether inside, just outside, or

significantly outside the Guidelines range," we apply a "defer-

ential abuse-of-discretion standard." Gall v. United States,

128 S. Ct. 586, 591 (2007). We must first "ensure that the dis-

trict court committed no significant procedural error." Id. at

597. If, and only if, we find the sentence procedurally reason-

1

If the district court had agreed with Carter’s objections to the PSR, the

base offense level—possession of a firearm by a prohibited person—

would have been 14. U.S. Sentencing Guidelines Manual § 2K2.1(a)(6)

(2007). With a two-level reduction for acceptance of responsibility, id.

§ 3E1.1(a), Carter’s total offense level would have been 12.

6 UNITED STATES v. CARTER

able can we "consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard." Id.;

see also United States v. Stephens, 549 F.3d 459, 465 (6th Cir.

2008).

Procedural errors include "failing to calculate (or improp-

erly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, select-

ing a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an expla-

nation for any deviation from the Guidelines range." Gall, 128

S. Ct. at 597.

When rendering a sentence, the district court "must make

an individualized assessment based on the facts presented."

Id. (emphasis added). That is, the sentencing court must apply

the relevant § 3553(a) factors to the specific circumstances of

the case before it. Such individualized treatment is necessary

"to consider every convicted person as an individual and

every case as a unique study in the human failings that some-

times mitigate, sometimes magnify, the crime and the punish-

ment to ensue." Id. at 598 (citation omitted).

Moreover, the district court must "state in open court" the

particular reasons supporting its chosen sentence. 18 U.S.C.

§ 3553(c) (2006). In doing so, "[t]he sentencing judge should

set forth enough to satisfy the appellate court that he has con-

sidered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority." Rita v.

United States, 127 S. Ct. 2456, 2468 (2007). This not only

"allow[s] for meaningful appellate review" but it also "pro-

mote[s] the perception of fair sentencing." Gall, 128 S. Ct. at

597. "Where the defendant or prosecutor presents nonfrivo-

lous 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." Rita, 127 S. Ct. at 2468.

UNITED STATES v. CARTER 7

Here, the district court did not justify Carter’s sentence

with an individualized rationale. To be sure, the district court

offered a variety of statements respecting the below-

Guidelines sentence. For example, the court stated that "there

is an appealing argument by [the] defense that this overpun-

ishes his particular conduct." But the court did not explain

why a Guidelines sentence would "overpunish" Carter. Simi-

larly, the district court stated that it was "telling the reviewing

body that [it was] looking at the four purposes in Section

3553(a)(2)," and then summarized those four purposes. But

the court did not explain how those purposes applied to Car-

ter. The district court also stated that it was "deliberating on

and integrating the seven factors that the reviewing court

wants to know that the trial court used and considered and

reflected on and were the foundation of the sentencing basis,"

and then summarized those factors. But once again, the dis-

trict court did not explain how those factors related to Carter.

Finally, although the district court stated that it took "into

account all of the pertinent policy statements issued by the

Sentencing Commission," it did not explain which policy

statements it found relevant to Carter.

The district court thus erred in failing to articulate how the

sentencing factors applied to the facts of the particular case

before it. The district court’s asserted "reasons" could apply

to any sentence, regardless of the offense, the defendant’s per-

sonal background, or the defendant’s criminal history. Indeed

—save for the lone, unexplained statement that a within-

Guidelines sentence would "overpunish" Carter—the district

court could have made precisely the same statements in sup-

port of an above-Guidelines sentence. As we have previously

explained, the district court need not "robotically tick through

§ 3553(a)’s every subsection." United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006). But at the same time, a talis-

manic recitation of the § 3553(a) factors without application

to the defendant being sentenced does not demonstrate rea-

soned decisionmaking or provide an adequate basis for appel-

late review. See Stephens, 549 F.3d at 466-67.

8 UNITED STATES v. CARTER

Carter maintains that numerous facts in the record amply

justify the district court’s below-Guidelines sentence. Carter

points to his testimony that a desire to "help a dying friend"

motivated him; to the fact that the prior felony convictions,

which provided the basis for the felon-in-possession offense,

were 22 years old; to letters that attested to his good moral

character; and to his responsibility for the care of his elderly

mother. He further notes that he provided a fingerprint sample

prior to working at the gun shows and that he thought Solo-

mon had obtained clearance from the ATFE for his employ-

ment. The district court, however, did not adopt any of these

reasons as its rationale for the sentence. We cannot determine

from this record if the court found some, all, or none of them

persuasive. Perhaps the district court based the sentence in

whole or in part on altogether different reasons. We simply do

not know.

Carter asks us to presume that the district court adopted his

arguments. Prior to United States v. Booker, 543 U.S. 220

(2005), Rita, and Gall, perhaps we could have done so. See

United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998).

But the Supreme Court’s recent sentencing jurisprudence

plainly precludes any presumption that, when imposing a sen-

tence, the district court has silently adopted arguments pre-

sented by a party. Rather, "the district judge," not an appellate

court, "must make an individualized assessment based on the

facts presented" to him. Gall, 128 S. Ct. at 596-97. In review-

ing this assessment, an appellate court may not guess at the

district court’s rationale, searching the record for statements

by the Government or defense counsel or for any other clues

that might explain a sentence.

Regardless of whether the district court imposes an above,

below, or within-Guidelines sentence, it must place on the

record an "individualized assessment" based on the particular

facts of the case before it.2 Id. at 597-98. This individualized

2

An appellate court may presume that a within-Guideline sentence is

substantively reasonable, but "the sentencing court does not enjoy the ben-

UNITED STATES v. CARTER 9

assessment need not be elaborate or lengthy, but it must pro-

vide a rationale tailored to the particular case at hand and ade-

quate to permit "meaningful appellate review." Id. at 597.

Because the record here does not demonstrate that the district

court conducted such an assessment and so does not reveal

why the district court deemed the sentence it imposed appro-

priate, we cannot hold the sentence procedurally reasonable.3

III.

For the foregoing reasons, we vacate the judgment of the

district court and remand for resentencing.4

VACATED AND REMANDED

efit of a legal presumption that the Guidelines sentence should apply."

Rita, 127 S. Ct. at 2465. Thus, the district court must state the individual-

ized reasons that justify a sentence, even when sentencing a defendant

within the Guidelines range. See id. at 2468; Stephens, 549 F.3d at 466-67.

3

In reaching this holding, we join our sister circuits who, after Gall,

have similarly vacated sentences as procedurally unreasonable because the

district court failed to offer a sufficient rationale for the sentence. See, e.g.,

United States v. Gapinski, __ F.3d __, 2009 WL 860059, at *1 (6th Cir.

Apr. 2, 2009) (vacating sentence based on downward variance for failing

to explain denial of additional downward variance); Stephens, 549 F.3d at

466-67 (vacating within-Guidelines sentence); United States v. Livesay,

525 F.3d 1081, 1093-94 (11th Cir. 2008) (vacating sentence based on a

downward variance).

4

The Government also argues that Carter’s sentence is substantively

unreasonable. Having found the sentence procedurally unreasonable, how-

ever, we cannot review the sentence for substantive reasonableness. See

Gall, 128 S. Ct. at 597; Stephens, 549 F.3d at 465, 467; United States v.

Evans, 526 F.3d 155, 169 (4th Cir. 2008) (Gregory, J., concurring). An

appellate court may not weigh the § 3553(a) factors in the first instance;

it can only determine whether the district court acted within its discretion

in sentencing. Gall, 128 S. Ct. at 597.