United States v. Lynn

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 08-5125

MARK LYNN, a/k/a Mark Aaron

Lynn,

Defendant-Appellant.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 08-5126

TAVARRAS RHODES, a/k/a Tavarras

Jerrell Rhodes,

Defendant-Appellant.



Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(3:08-cr-00082-RLW-1; 3:08-cr-00082-RLW-2)

2 UNITED STATES v. LYNN

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-5132

AVERY JERMAINE PEAKE,

Defendant-Appellant.



Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(6:08-cr-00120-HMH-1)

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 09-4341

JEREMY VASHON TUCKER, a/k/a

Nicholas Wilson,

Defendant-Appellant.



Appeal from the United States District Court

for the District of South Carolina, at Spartanburg.

Henry F. Floyd, District Judge.

(7:08-cr-00666-HFF-1)

Argued: December 3, 2009

Decided: January 28, 2010

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

UNITED STATES v. LYNN 3

No. 08-5125 vacated and remanded by published opinion; No.

08-5126 affirmed by published opinion; No. 08-5132 affirmed

by published opinion; No. 09-4341 vacated and remanded by

published opinion. Judge Motz wrote the opinion, in which

Judge Michael and Judge Gregory joined.

COUNSEL

(Nos. 08-5125, 08-5126) ARGUED: Gregory Bruce English,

ENGLISH & SMITH, Alexandria, Virginia, for Appellants.

Richard Daniel Cooke, OFFICE OF THE UNITED STATES

ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:

Mark K. Tyndall, Richmond, Virginia, for Appellant Tavarras

Rhodes. Dana J. Boente, Acting United States Attorney, Alex-

andria, Virginia, for Appellee. (No. 08-5132) ARGUED:

David Wilson Plowden, OFFICE OF THE FEDERAL PUB-

LIC DEFENDER, Greenville, South Carolina, for Appellant.

William Jacob Watkins, Jr., OFFICE OF THE UNITED

STATES ATTORNEY, Greenville, South Carolina, for

Appellee. ON BRIEF: W. Walter Wilkins, United States

Attorney, Columbia, South Carolina, for Appellee. (No. 09-

4341) ARGUED: Benjamin Thomas Stepp, OFFICE OF

THE FEDERAL PUBLIC DEFENDER, Greenville, South

Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE

OF THE UNITED STATES ATTORNEY, Greenville, South

Carolina, for Appellee. ON BRIEF: W. Walter Wilkins,

United States Attorney, Columbia, South Carolina; David C.

Stephens, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Greenville, South Carolina,

for Appellee.

4 UNITED STATES v. LYNN

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In each of these cases, an appellant contends that the sen-

tencing court committed reversible procedural error by failing

to consider the required sentencing factors and offer an ade-

quate explanation for the sentence imposed. When a party

lodges such an objection in the sentencing court, we review

for abuse of discretion. We consolidated these cases on appeal

to resolve what standard of appellate review applies when a

party lodges such an objection for the first time on appeal. For

the reasons that follow, we conclude that we subject such

unpreserved objections only to plain-error review.

I.

The question at issue in these consolidated cases arises

from the Supreme Court’s recent sentencing decisions. In

United States v. Booker, 543 U.S. 220, 245, 262 (2005), the

Court rendered the once-mandatory federal Sentencing Guide-

lines "effectively advisory," and called on federal appellate

courts to review district courts’ sentences for "reasonable-

ness." In Gall v. United States, 552 U.S. 38, 51 (2007), the

Court explained that this reasonableness review has proce-

dural and substantive components.

First, an appellate court must review for procedural reason-

ableness,

ensur[ing] that the district court committed no signif-

icant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treat-

ing the Guidelines as mandatory, failing to consider

the [18 U.S.C.] § 3553(a) [(2006)] factors,1 selecting

1

These factors include the "nature and circumstances of the offense and

the history and characteristics of the defendant"; the need "to reflect the

UNITED STATES v. LYNN 5

a sentence based on clearly erroneous facts, or fail-

ing to adequately explain the chosen sentence—

including an explanation for any deviation from the

Guidelines range.

Id. If the appellate court finds a sentence procedurally reason-

able, 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." Id.; see also Rita v. United

States, 551 U.S. 338, 351 (2007). These consolidated cases

present claims only of procedural error, i.e. that a sentencing

court assertedly "fail[ed] to consider the § 3553(a) factors"

and "adequately explain the chosen sentence," as required by

§ 3553(c). Gall, 552 U.S. at 51; see also Rita, 551 U.S. at

356.

The Supreme Court has held that when sentencing, a court

must demonstrate that it "considered the parties’ arguments

and ha[d] a reasoned basis for exercising [its] own legal deci-

sionmaking authority." Rita, 551 U.S. at 356. "[A] statement

of reasons is important" because it "helps [the sentencing]

process evolve," id. at 356, 357, "allow[s] for meaningful

appellate review[,] and . . . promote[s] the perception of fair

sentencing." Gall, 552 U.S. at 50.

We have addressed claims of procedural sentencing error in

several recent cases. Relying on Supreme Court guidance, we

have held that for every sentence—whether above, below, or

within the Guidelines range—a sentencing court must "place

on the record an ‘individualized assessment’ based on the par-

ticular facts of the case before it." United States v. Carter, 564

seriousness of the offense, to promote respect for the law, . . . to provide

just punishment . . . [,] . . . to afford adequate deterrence . . . [,] . . . to

protect the public from further crimes of the defendant[,] . . . to provide

the defendant with needed" training and care, "to avoid unwarranted sen-

tence disparities," and "to provide restitution to any victims"; "the kinds

of sentences available"; the Guidelines range; and pertinent policy state-

ments from the Sentencing Commission. 18 U.S.C. § 3553(a).

6 UNITED STATES v. LYNN

F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at 50).

But we have also held that in explaining a sentencing deci-

sion, a court need not "robotically tick through § 3553(a)’s

every subsection," particularly when imposing a within-

Guidelines sentence. United States v. Johnson, 445 F.3d 339,

345 (4th Cir. 2006). "[A] major departure [from the Guide-

lines] should be supported by a more significant justification

than a minor one," Gall, 552 U.S. at 50, but an individualized

explanation must accompany every sentence. See United

States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009); Carter,

564 F.3d at 330.

Although to date neither this court nor the Supreme Court

has issued an express holding as to the standard of review of

properly preserved objections to the sort of procedural sen-

tencing errors at issue here, the Court has generally stated that

we "must review all sentences . . . under a deferential abuse-

of-discretion standard." Gall, 552 U.S. at 40. Moreover, when

considering another sort of procedural sentencing error, the

Court recently observed that "procedural errors at sentencing

. . . are routinely subject to harmlessness review." Puckett v.

United States, 129 S. Ct. 1423, 1432 (2009). We have simi-

larly remarked in the context of another procedural sentencing

error that, when an appellant properly preserved such error,

"we are obliged to apply the ‘harmless error’ standard pro-

vided by Federal Rule of Criminal Procedure 52(a)." United

States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006); see

Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or

variance that does not affect substantial rights must be disre-

garded."). Accordingly, we conclude that if a party repeats on

appeal a claim of procedural sentencing error like those at

issue here, which it has made before the district court, we

review for abuse of discretion. If we find such abuse, we

reverse unless we conclude that the error was harmless.

This does not, however, resolve the question of what stan-

dard of appellate review applies to such claims of procedural

sentencing error made for the first time on appeal.

UNITED STATES v. LYNN 7

II.

Although we have not yet directly addressed this question,

we believe the answer is clear. Federal Rule of Criminal Pro-

cedure 52(b), as well as recent cases from the Supreme Court

and our court dictate the proper standard of review generally

applicable to unpreserved procedural sentencing errors. This

authority requires that in the context at hand, as in most oth-

ers, when a party does not preserve an argument in the district

court, we review only for plain error.

Rule 52(b) provides that, in the absence of proper preserva-

tion, plain-error review applies. See Fed. R. Crim. P. 52(b).

To establish plain error, the appealing party must show that

an error (1) was made, (2) is plain (i.e., clear or obvious), and

(3) affects substantial rights. United States v. Massenburg,

564 F.3d 337, 342-43 (4th Cir. 2009). Even if an appellant

makes this three-part showing, an appellate court may exer-

cise its discretion to correct the error only if it "seriously

affects the fairness, integrity or public reputation of judicial

proceedings." Id. at 343 (internal quotation marks omitted).

Absent structural error (and no party contends that the

errors at issue here are structural), the Supreme Court has

generally held that appellate courts can review unpreserved

claims only for plain error. United States v. Olano, 507 U.S.

725, 731 (1993). Moreover, just this term, when considering

another sort of sentencing error, the Supreme Court expressly

held that "[i]f an error is not properly preserved, appellate-

court authority to remedy the error . . . is strictly circum-

scribed" to plain-error review. Puckett, 129 S. Ct. at 1428.

The Court explained that applying plain-error review in the

sentencing context "serves worthy purposes," id. at 1433,

including "induc[ing] the timely raising of claims and objec-

tions," id. at 1428. In Booker itself, the Court instructed that

in reviewing sentences, courts should "apply ordinary pruden-

tial doctrines, determining, for example, whether the issue

8 UNITED STATES v. LYNN

was raised below and whether it fails the ‘plain-error’ test."

543 U.S. at 268.

Like the Supreme Court, we too have indicated that the rig-

orous plain-error standard applies to unpreserved claims of

procedural sentencing error. See United States v. Sosa-

Carabantes, 561 F.3d 256, 259 n.6 (4th Cir. 2009) (noting

plain-error review would apply to objection to application of

Guidelines enhancement if not made before the district court,

but finding objection preserved); United States v. Clark, 434

F.3d 684, 686 n.1 (4th Cir. 2006) (noting plain-error review

would apply to objection to district court’s failure to consider

§ 3553 sentencing factor if not made before the district court,

but finding objection preserved).

Our sister circuits have generally agreed with this conclu-

sion. See, e.g., United States v. Pakala, 568 F.3d 47, 56 (1st

Cir. 2009); United States v. Waknine, 543 F.3d 546, 554 (9th

Cir. 2008); United States v. Sevilla, 541 F.3d 226, 230-31 (3d

Cir. 2008); United States v. Gray, 533 F.3d 942, 945 (8th Cir.

2008); In re Sealed Case, 527 F.3d 188, 191-92 (D.C. Cir.

2008); United States v. Vonner, 516 F.3d 382, 385 (6th Cir.

2008) (en banc); United States v. Peltier, 505 F.3d 389, 391-

92 (5th Cir. 2007); United States v. Villafuerte, 502 F.3d 204,

211 (2d Cir. 2007); United States v. Romero, 491 F.3d 1173,

1177-78 (10th Cir. 2007). In accord with all of this authority,

we now hold, as the Government contends, that plain-error

review applies when a party lodges an objection to the sort of

procedural sentencing error at issue here for the first time on

appeal.

The question remains as to how a party may preserve such

a claim of procedural sentencing error in the district court.

The Government seems to contend that to avert plain-error

review, a party must object to a perceived error after the dis-

trict court has rejected the party’s arguments. But the Federal

Rules of Criminal Procedure reject this formulaic approach.

Instead, the Rules expressly provide that "[a] party may pre-

UNITED STATES v. LYNN 9

serve a claim of error by informing the court—when the court

ruling or order is made or sought—of the action the party

wishes the court to take, or the party’s objection to the court’s

action and the grounds for that objection." Fed. R. Crim. P.

51(b) (emphases added). Thus, the Rules abandon the require-

ment of formulaic "exceptions"—after the fact—to court rul-

ings. As Judge Easterbrook has explained, Rule 51 does "not

require a litigant to complain about a judicial choice after it

has been made." United States v. Bartlett, 567 F.3d 901, 910

(7th Cir. 2009).

The Federal Rules of Criminal Procedure, which the

Supreme Court has expressly approved, represent the consid-

ered view after extensive study of skilled judges and lawyers.

We see good reason to adopt the approach to preservation set

forth in those Rules, and no reason to reject it. This is particu-

larly so given that we have followed precisely this approach

in other sentencing cases. See Sosa-Carabantes, 561 F.3d at

259 n.6 (holding that appellant preserved its objection to the

district court’s application of a sentencing enhancement by

arguing before the district court’s ruling that the enhancement

should not apply); Clark, 434 F.3d at 686 n.1 (holding that the

Government preserved the argument that the district court

failed to consider a relevant § 3553 factor even though the

Government had not objected after the district court’s expla-

nation and had not specifically asked the court to consider that

factor, reasoning that the Government’s "objection [to the

defendant’s motion for a downward departure] in its supple-

mental brief [before the district court] . . . was sufficient to

preserve its claim for appellate review"); see also Bartlett,

567 F.3d at 910 (holding in the context of an asserted proce-

dural sentencing error by the district court that the defendant’s

"sentence was the subject of extensive argument and evi-

dence; his lawyer did not need to argue with the judge once

the sentence had been pronounced").

The Government’s litigation position in recent cases signals

its own discomfort with the preservation requirement it now

10 UNITED STATES v. LYNN

advances. In three recent cases — Carter; United States v.

Engle, ___ F.3d ___ (4th Cir. 2010), available at 2010 WL

114944; and United States v. Wilkinson, ___ F.3d ___ (4th

Cir. 2010), available at 2010 WL 9946 — in which the Gov-

ernment appealed the inadequacy of the district court’s expla-

nation and consideration of § 3553 factors, the Government

argued for abuse-of-discretion review even though it did not

ask specifically for a better explanation of the sentence after

it had been rendered.2 The Government’s newly minted

approach, therefore, runs counter not only to the Rules but

also to its previously consistent position on the matter: that is,

"when an issue is argued before the judicial ruling, counsel

need not take exception once the court’s decision has been

announced." Bartlett, 567 F.3d at 910.

By drawing arguments from § 3553 for a sentence different

than the one ultimately imposed, an aggrieved party suffi-

ciently alerts the district court of its responsibility to render an

individualized explanation addressing those arguments, and

thus preserves its claim. Requiring a party to lodge an explicit

objection after the district court explanation would "saddle

busy district courts with the burden of sitting through an

objection—probably formulaic—in every criminal case."

United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th

Cir. 2005).3 When the sentencing court has already "heard

2

Similarly, in each of these consolidated cases, the Government initially

argued for abuse-of-discretion review. The Government changed its posi-

tion — to plain-error review and requiring preservation of error by objec-

tion to the sentence after imposition—only after we asked for additional

briefing on the issue.

3

We are also concerned that such a requirement could degenerate into

a never-ending stream of objections after each sentencing explanation.

Although the Government in one of the consolidated cases has assured us

in a supplemental letter that "only one objection . . . is necessary to pre-

serve the matter," we do not see how this limitation can be enforced or

how it accords with an objection requirement intended to force a district

court to remedy its errors contemporaneously. We today opt for an

approach that gives courts this opportunity while limiting the drain on

district-court time.

UNITED STATES v. LYNN 11

argument and allocution from the parties and weighed the rel-

evant § 3553(a) factors before pronouncing sentence," id., we

see no benefit in requiring the defendant to protest further.

See United States v. Grier, 475 F.3d 556, 571 n.11 (3d Cir.

2007) (en banc) ("An objection to [an inadequate explanation]

will be preserved if, during sentencing proceedings, the defen-

dant properly raised a meritorious factual or legal issue relat-

ing to one or more of the factors enumerated in 18 U.S.C.

§ 3553(a).").4

With these principles in mind, we turn to the cases at hand.

III.

In each case, we must first determine if the appellant

lodged his objection to the adequacy of the district court’s

sentencing procedure for the first time on appeal. If so, we

can review only pursuant to the rigorous plain-error standard.

If, however, the appellant preserved his appellate objection by

articulating it first in the district court, we review for abuse of

discretion—reversing if we find error unless we can conclude

that it was harmless.

4

In one of these consolidated cases, the Government fleetingly relies on

an evidence rule to contend that a party’s objection to a sentence must also

be "specific." Cf. Fed. R. Evid. 103(a)(1). Even if this Rule governed

objections to a sentencing ruling (and it does not), it only imposes a partic-

ular specificity requirement "if the specific ground" for an objection "was

not apparent from the context." Id. A party’s invocation of and argument

as to § 3553 in the context of recent controlling Supreme Court and Fourth

Circuit precedent certainly render the party’s specific objections "appar-

ent" to the sentencing court. Once that is done, no further objection is nec-

essary to preserve the argument. Although unacknowledged by the

Government, Rule 103(a) itself expressly provides that "[o]nce the court

makes a definitive ruling on the record[,] . . . a party need not renew an

objection . . . to preserve a claim of error for appeal." Id. 103(a). Of

course, lodging one specific claim of procedural sentencing error before

the district court, e.g., relying on certain § 3553 factors, does not preserve

for appeal a different claim of procedural sentencing error, e.g., relying on

different § 3553 factors.

12 UNITED STATES v. LYNN

A.

The sentencing challenge raised in No. 08-5132 arises from

the police discovery of Avery Peake with a gun and $500 on

his person, in a car containing crack cocaine. Peake pleaded

guilty to possession of a firearm by a convicted felon, in vio-

lation of 18 U.S.C. § 922(g)(1) (2006).

1.

Peake’s presentence report ("PSR") calculated a Guidelines

range of 84 to 105 months in prison, but in response to an

unopposed objection by Peake at sentencing, the district court

adjusted the range to 57 to 71 months. The court asked Peake

if he had any further objections to the sentence proposed in

the PSR. When Peake replied that he did not, the court

adopted the PSR with the adjusted range.

The court then indicated that it would "hear from" Peake’s

counsel. Defense counsel stated that he believed that the "Pre-

sentence Report fairly sets out the circumstances of [Peake’s]

life and this offense," and added only that he "would point

out" that Peake’s prior convictions occurred mostly "when he

was very young," and that "the arrests he’s had since then are

essentially alcohol related, which goes . . . to substance

abuse" problems. The district court asked Peake if he wanted

to add anything before imposition of sentence. When Peake

declined to do so, the court imposed a prison sentence of 57

months, at the very bottom of the Guidelines range, explain-

ing that it had "considered the guidelines as advisory only"

and "believe[d] the factors of [§ 3553(a)] are accomplished

with a guideline sentence."

2.

Peake failed to preserve his objection in the district court

to that court’s consideration of the § 3553 factors and expla-

nation for the sentence imposed. His attorney did not argue

UNITED STATES v. LYNN 13

for a sentence different than the within-Guidelines sentence

Peake ultimately received. Rather, in the context of a within-

Guidelines sentence, he merely "point[ed] out" Peake’s con-

duct since adulthood and substance abuse problems. He did

not ask the court to depart from the correctly calculated

Guidelines range based on consideration of the relevant

§ 3553 factors. Defense counsel therefore lodged no objection

to the adequacy of the district court’s explanation. Conse-

quently, we review Peake’s claim for plain error.

To establish plain error, Peake must demonstrate that the

explanation in this case constituted plain error affecting sub-

stantial rights. See Massenburg, 564 F.3d at 343. In other

words, even if we assume that the district court’s very brief

explanation constituted clear error, Rule 52(b) requires that

Peake also show that this explanation had a prejudicial effect

on the sentence imposed. See Puckett, 129 S. Ct. at 1433 n.4.5

Peake has not made such a showing. His attorney’s arguments

before the district court urged that court only to impose a sen-

tence within the Guidelines range, which it did. Accordingly,

we must affirm.

B.

No. 09-4341 grows out of Jeremy Vashon Tucker’s plea of

guilty to possessing a firearm as a convicted felon. The con-

viction arose out of an incident three years before, in which

Tucker accidentally shot himself in the leg.

5

We note that in this context some courts have eliminated the need for

an appellant to demonstrate that an error affected his substantial rights. See

Sealed Case, 527 F.3d at 192 ("The absence of a statement of reasons is

prejudicial in itself because it precludes appellate review of the substantive

reasonableness of the sentence."); United States v. Hirliman, 503 F.3d

212, 215 (2d Cir. 2007). We decline to follow this approach. Rather, we

take to heart the Supreme Court’s more recent admonition that such "un-

justified exception[s]" to Rule 52(b) would undercut the "worthy pur-

poses" of plain-error review. Puckett, 129 S. Ct. at 1429, 1433.

14 UNITED STATES v. LYNN

1.

The PSR in Tucker’s case calculated a total offense level

of 30, a criminal history category of VI, and thus a Guidelines

range of 168 to 210 months in prison. However, the PSR rec-

ommended a sentence of 120 months, consistent with the

maximum statutory penalty for Tucker’s offense. See 18

U.S.C. § 924(a)(2) (2006).

At sentencing, the district court granted Tucker’s unop-

posed motion to remove the PSR’s armed career criminal des-

ignation under United States Sentencing Guidelines Manual

("U.S.S.G.") § 4B1.4 (2008). This resulted in the lowering of

Tucker’s offense level, and placement of him in a Guidelines

range of 51 to 63 months. However, the court informed

Tucker that it was considering departing upward from this

Guidelines range under U.S.S.G. § 4A1.3 (2008) because

Tucker’s criminal history category did not adequately reflect

the seriousness of his criminal history. The district judge

noted Tucker’s "very extensive criminal history," and recalled

that he had sentenced Tucker in state court

back in ’99 to a prison term and something is just not

taking. I don’t know what it is, but I feel like . . . 51

to 63 months does not . . . afford adequate deterrence

and protection of the public from further crimes.

And I also take into consideration the seriousness of

the offense, as well as the nature and characteristics

of the defendant to include such an extensive crimi-

nal record. Therefore, it’s my intention to vary up 7

levels . . . [to] a range of 100 to 125 months.

In arguing against this departure, Tucker’s counsel focused

on the unusual circumstances surrounding Tucker’s case. The

charged offense took place three years earlier, when Tucker

arrived at a hospital after accidentally shooting himself.

Defense counsel pointed out that although Tucker admittedly

had possessed a gun, he had not been "out there using the gun

UNITED STATES v. LYNN 15

committing another crime sticking up people or something

like that," but rather had been otherwise law abiding both at

the time he accidentally shot himself and during the entire

three-year period following the injury. Tucker himself pointed

to the unexplained three-year delay between the issuance and

execution of the arrest warrant in this case, and noted that dur-

ing that period, he had never "flunk[ed] a drug test or [done]

any stuff that would cause [him] to get in trouble." Tucker

asked to be "give[n] another chance to go back and do what

I was doing before I came here."

Without in any way addressing these arguments, the district

court imposed a sentence nearly twice as long as the low end

of the advisory Guidelines range. The court provided the fol-

lowing bare explanation of its sentence: "Having calculated

and considered the advisory sentencing guidelines and . . . the

relevant statutory sentencing factors contained in [§] 3553(a),

it’s the judgment of the court that . . . Tucker . . . be impris-

oned for a term of 101 months."

2.

The record makes clear that Tucker preserved his objection

to the district court’s explanation of the sentence. Defense

counsel asked the district court to consider a sentence "either

at the bottom end of the advisory range or perhaps even a

lower sentence that that." He drew from § 3553(a)(1) and

(a)(2)(A) to argue that an out-of-Guidelines sentence, which

the court ultimately imposed, was inconsistent with Tucker’s

recent criminal history and unusual crime of conviction.

Tucker’s § 3553 arguments in the district court for a different

sentence than the one he received preserved his claim of pro-

cedural sentencing error on appeal. Therefore, we review the

district court’s sentencing procedure for abuse of discretion,

and must reverse if we find error, unless we can conclude that

the error was harmless.

That the district court committed significant procedural

error in sentencing Tucker seems clear. The court provided no

16 UNITED STATES v. LYNN

individualized explanation for its substantial departure from

the Guidelines. The court did not, as the Supreme Court

requires, address Tucker’s "nonfrivolous reasons for imposing

a different sentence," Rita, 551 U.S. at 357, particularly his

contention that the nature and circumstances of his current

crime and criminal history did not warrant an above-

Guidelines sentence. See id. (holding that a district court

imposing a within-Guidelines sentence need not provide a

lengthy explanation "[u]nless a party contests the Guidelines

sentence generally under § 3553(a) . . . or argues for a depar-

ture" under the Sentencing Guidelines). The court explained

Tucker’s sentence only by stating that it remembered sentenc-

ing Tucker in the past and "d[id]n’t know" why a within-

Guidelines sentence was inadequate under § 3553. The

Supreme Court has repeatedly held that when a sentencing

judge "decides that an outside-Guidelines sentence is war-

ranted, he must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to sup-

port the degree of the variance." Gall, 552 U.S. at 50; Rita,

551 U.S. at 357.

No such consideration or compelling explanation supports

the court’s sixty-percent departure from the high end of the

Guidelines range. In order to satisfy the explanation require-

ment, the district court might have discussed why, in light of

Tucker’s criminal history, the unusual crime of conviction

was irrelevant or did not support a sentence lower than the

one imposed. Alternatively, the court might have credited

Tucker’s arguments, but concluded that other considerations

drawn from §§ 3553 or 4A1.3 supported imposition of a lon-

ger sentence than the one the Guidelines proposed. By provid-

ing no explanation at all for a substantially above-Guidelines

sentence, the court committed procedural sentencing error.

We cannot conclude that this error was harmless. When

faced with an unexplained out-of-Guidelines sentence, we

have in the past remanded for resentencing because we could

not determine "why the district court deemed the sentence it

UNITED STATES v. LYNN 17

imposed appropriate." Carter, 564 F.3d at 330; see also

Engle, 2010 WL 114944, at *7; Wilkinson, 2010 WL 9946, at

*8-9. We see no reason to abandon this approach today. The

district court’s explicit consideration of Tucker’s arguments

for a lower sentence might have convinced the court to

impose such a sentence. In any event, the district court’s fail-

ure to address Tucker’s arguments and justify a significantly

out-of-Guidelines sentence has produced a "record insuffi-

cient to permit even . . . routine review" for substantive rea-

sonableness. Engle, 2010 WL 114944, at *6.

Accordingly, we vacate Tucker’s sentence and remand for

resentencing.6

C.

The final consolidated case, Nos. 08-5125 and 08-5126,

arises from a trooper’s stop of Mark Lynn and Tavarras

Rhodes as they traveled southbound through Virginia on I-95,

a known drug thoroughfare. The trooper observed their rental

sedan commit several evasive traffic violations, and pulled it

over. As the trooper approached the stopped car, he smelled

the odor of marijuana in the passenger compartment; he then

noticed the nervousness of Lynn and Rhodes and received

inconsistent stories from them as to the purpose of their trip.

A warrantless, simultaneous search of the sedan’s passenger

6

Tucker raises a second, equally meritorious, ground for reversal. As in

United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007), the district

court here failed to depart incrementally upward from criminal history cat-

egory VI, as required by U.S.S.G. § 4A1.3(a)(4)(B) (2008). In Dalton, we

held that, "even where an upward departure from [category] VI is plainly

warranted, a sentencing court must depart incrementally, explaining the

reasons for its departure." Id. While the court need not move just one

offense level or move mechanistically through the levels, it must provide

some explanation for the magnitude of its departure. Id. Even the Govern-

ment appears to concede that in this case "‘a more rigorous sentencing

analysis’" was required. See Gov’t Br. 13 (quoting Dalton, 477 F.3d at

200).

18 UNITED STATES v. LYNN

compartment and trunk followed, which revealed "well over

a hundred" empty glassine baggies in the back seat of the car;

a half-smoked marijuana cigarette on the driver’s side floor;

an "overwhelming . . . chemical odor" in the passenger com-

partment, emanating from the trunk; and a plastic bag contain-

ing more than 100 grams of heroin in the trunk.

A grand jury indicted Lynn and Rhodes of (1) possessing

with intent to distribute and (2) conspiring to distribute over

100 grams of heroin, in violation of 21 U.S.C. §§ 841(a), 846

(2006). The district court denied their motion to suppress the

heroin and their subsequent incriminating statements.7 After a

joint trial, a jury convicted the men of both crimes.

1.

Lynn (but not Rhodes) challenges his sentence. Lynn’s

PSR, which the district court adopted, classified him as a

career offender under U.S.S.G. § 4B1.1 (2008) and calculated

a Guidelines range of 360 months to life in prison. Before the

district court, Lynn maintained that he should be awarded a

downward variance from the Guidelines pursuant to the

7

Both Lynn and Rhodes challenge the district court’s denial of their

motion to suppress, arguing that the police lacked probable cause to con-

duct a search of the trunk. The Government contends that even if probable

cause did not provide a basis for searching the trunk, the inevitable discov-

ery doctrine does. We agree. The smell of marijuana in the passenger com-

partment of the car furnished police with probable cause to search that

compartment. See United States v. Carter, 300 F.3d 415, 422 (4th Cir.

2002). The search revealed more than one hundred empty baggies in the

back seat, a half-smoked marijuana cigarette on the driver’s side floor, and

a strong chemical odor emanating from the trunk; clearly, this evidence

would have given the officers probable cause to arrest Lynn and Rhodes

and perform an inventory search of the vehicle. See United States v. Mat-

thews, ___ F.3d ___, ___ (4th Cir. 2009), available at 2009 WL 5173719,

at *2. That search would inevitably have led the officers to discover the

heroin in the trunk. Because we uphold the denial of the suppression

motion on this ground, we need not reach the question of whether the

police had probable cause to search the trunk.

UNITED STATES v. LYNN 19

§ 3553 sentencing factors. He contended that he fell "at the

very margins of career offender status" because "the greatest

sentence that he ha[d] served prior to the imposition of this

sentence [wa]s two and a half years." He protested that the

evidence demonstrated that he was not a "drug kingpin" but

only a "courier" "for the benefit of another." He maintained

that the evidence showed that he had been paid just $1000 for

the charged crime. He also asserted that a lengthy sentence

would not achieve "specific deterrence" or "protect[ion of] the

public," and that to impose a within-Guidelines career-

offender sentence on him would create unwarranted sentenc-

ing disparities, given the substantial difference between state

sentences and career-offender federal sentences.

Without addressing any of Lynn’s § 3553 arguments, the

district court sentenced Lynn to a within-Guidelines career-

offender sentence of 33 years. The court offered scant expla-

nation, stating only that the sentence was "fair and appropriate

and . . . consistent with the requirements of [§ 3553(a)]."

After imposing its sentence and immediately prior to recess-

ing, the district judge commented that he hoped that this was

Lynn’s last crime, that he "never imposed a sentence on any-

one . . . other than in the public’s best interest," that Lynn had

a long criminal history, and that "they finally caught up with

[him]."

2.

Lynn preserved his objection to the sentence. In his brief to

the district court, and again at sentencing, Lynn’s attorney

invoked § 3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C), and

(a)(6) to argue that "[a] sentence [of] 30 years[, the bottom

end of the Guidelines range for a career offender,] is just

unreasonable and unfair under the circumstances." Lynn

maintained that he acted only "as a courier, transporting a rel-

atively small amount of heroin, and should not be sentenced

as a multiple offender drug kingpin to thirty years of incarcer-

ation." Rather, he argued, ten years, the high end of the non-

20 UNITED STATES v. LYNN

career-offender Guidelines, was "more than sufficient — but

not greater than necessary — as punishment." Lynn pointed

out that his career-offender status rested on 10- to 18-year-old

convictions, which resulted in less than three combined years

of incarceration. Because Lynn preserved his sentencing chal-

lenge, we review for abuse of discretion.

In explaining the 33-year sentence, the district court barely

referred to Lynn or his case. In fact, beyond finding the sen-

tence "fair and appropriate and . . . consistent with the

requirements of [§ 3553(a)]," the court observed merely—as

a parting comment at the end of the hearing—that Lynn "had

almost an uninterrupted 26 years of committing what crime

[he] thought [he] could get by with, and [the authorities]

finally caught up with [him]." This "explanation" was inade-

quate because it failed to address Lynn’s specific § 3553 argu-

ments or explain why the sentence imposed on him was

warranted in light of them.

We, of course, recognize that in Rita the Supreme Court

explained that "when a judge decides simply to apply the

Guidelines to a particular case, doing so will not necessarily

require lengthy explanation," and that an appellate court can

presume that a within-Guidelines sentence is reasonable. 551

U.S. at 347, 356. But the Rita Court also expressly held that

a district court cannot presume that a within-Guidelines sen-

tence is reasonable. Id. at 351. Moreover, less than a year

after issuance of Rita, the Court further explained that

although "all sentencing proceedings" should begin with "cor-

rect[ ] calculat[ion]" of the "applicable Guidelines range,"

sentencing judges should treat the Guidelines only as "the

starting point." Gall, 552 U.S. at 49. "After settling on the

appropriate sentence," a district court "must adequately

explain the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentencing." Id.

As the Gall Court said, and we have reiterated, a district

court’s explanation of its sentence need not be lengthy, but

the court must offer some "individualized assessment" justify-

UNITED STATES v. LYNN 21

ing the sentence imposed and rejection of arguments for a

higher or lower sentence based on § 3553. Gall, 552 U.S. at

50; Carter, 564 F.3d at 330. The district court failed to do that

here. Thus, Lynn’s sentence stands in stark contrast to that in

Johnson, in which we found adequate an explanation that,

although somewhat brief, "outlined the defendant’s particular

history and characteristics not merely in passing or after the

fact, but as part of its analysis of the statutory factors and in

response to defense counsel’s arguments for a downward

departure." 587 F.3d at 639.

Nor, unlike in Rita, does the record of Lynn’s sentencing

hearing "make[ ] clear that the sentencing judge considered

the [defendant’s] evidence and arguments" in fashioning its

sentence. 551 U.S. at 359. In Rita, the appellate court could

look to the district court’s lengthy discussion with, and ques-

tioning of, defense counsel and determine that the district

court understood the defendant’s arguments for a reduced sen-

tence and had reasons for rejecting those arguments. See id.

at 344-45, 358-59. No such discussion or questioning

occurred here. Indeed, the only time the district court even

acknowledged the defendant’s arguments was after it had

imposed sentence; even then, it did so obliquely.

Simply put, because there is no indication that the district

court considered the defendant’s nonfrivolous arguments prior

to sentencing him, we must find error. Here as in Carter,

where the inadequacy of the explanation required us to

remand for resentencing, "the district court could have made

precisely the same statements in support of" a different sen-

tence. 564 F.3d at 329. In sum, the district court erred and so

abused its discretion by ignoring Lynn’s nonfrivolous argu-

ments for a different sentence and failing to explain the sen-

tencing choice.

Whether this error requires reversal presents a close ques-

tion. As is often the case in such situations, our resolution

depends on which party bears the burden of persuasion. To

22 UNITED STATES v. LYNN

avoid reversal for non-constitutional, non-structural errors

like this, the party defending the ruling below (here, the Gov-

ernment) bears the burden of demonstrating that the error was

harmless, i.e. that it "did not have a ‘substantial and injurious

effect or influence’" on the result. United States v. Curbelo,

343 F.3d 273, 278 (4th Cir. 2003) (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)); see also United

States v. Henson, 550 F.3d 739, 741 (8th Cir. 2008). The

Government has failed to carry that burden in this case.

Indeed, the Government does not even contend that any error

was harmless. Given the strength of Lynn’s arguments for a

different sentence, we cannot say with any "fair assurance,"

Kotteakos, 328 U.S. at 765, that the district court’s explicit

consideration of those arguments would not have affected the

sentence imposed. Accordingly, we must vacate and remand

for resentencing. Id. at 776. We note that in a recent case in

which the extent of harm caused by a procedural sentencing

error was not immediately clear, the Supreme Court did pre-

cisely this. See Nelson v. United States, 129 S. Ct. 890 (2009).

We follow suit here.

Because sentencing in this case took place shortly after

issuance of Gall and before issuance of Carter, the district

court did not have the benefit of their discussion of the law

in this area. See Spears v. United States, 129 S. Ct. 840, 846

(2009) (Roberts, C.J., dissenting) (observing that recent

Supreme Court sentencing decisions "have given the lower

courts a good deal to digest over a relatively short period").

We are confident that, in the future, district courts will fulfill

their responsibilities under Gall and Carter to deliver "indi-

vidualized explanations" for the sentences they impose.

IV.

For the above reasons, we direct entry of the following

orders:

UNITED STATES v. LYNN 23

No. 08-5125 VACATED AND REMANDED

No. 08-5126 AFFIRMED

No. 08-5132 AFFIRMED

No. 09-4341 VACATED AND REMANDED