US v. Michael Scott

Filing 920100524

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4081

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL ALEXANDER SCOTT, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, Senior District Judge. (4:08-cr-00084-RGD-JEB-1)

Submitted:

April 28, 2010

Decided:

May 24, 2010

Before KING, SHEDD, and DAVIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, Alexandria, Virginia; Walter B. Dalton, Assistant Federal Public Defender, Norfolk, Virginia, for Appellant. Dana J. Boente, Assistant United States Attorney, Alexandria, Virginia; Scott W. Putney, Assistant United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael Alexander Scott pled guilty to being a felon in possession of a firearm, and was years in violation to of 18 U.S.C. months' Scott

§ 922(g)(1) imprisonment appeals.

(2006), and

sentenced of

fifty-one release.

three

supervised

In light of United States v. Lynn, 592 F.3d 572 (4th

Cir. 2010), we vacate and remand. Scott contends that the district court committed a

procedural error by failing to explain the factual basis for requiring him to undergo mental health evaluation and treatment as a sex offender, as a special condition of supervised release. After United States v. Booker, 543 U.S. 220 (2005), this court reviews a sentence for reasonableness, using an abuse of

discretion standard of review. 38, 51 (2007). to ensure that

Gall v. United States, 552 U.S.

The first step in this review requires the court the district court committed no significant

procedural error. (4th Cir. 2008). (or

United States v. Evans, 526 F.3d 155, 161 Procedural errors include the "failing to

calculate

improperly

calculating)

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 -- including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51. 2

"[I]f a party repeats on appeal a claim of procedural sentencing error . . . which it has made before the district court, [this court] review[s] for abuse of discretion" and will reverse if such an abuse of discretion is found unless the court can conclude "that the error was harmless." 576. Lynn, 592 F.3d at

For instance, "the district court must state in open court

the particular reasons supporting its chosen sentence" and "set forth enough to satisfy the appellate court that [it] has

considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority." United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks omitted). If "an aggrieved party sufficiently

alerts the district court of its responsibility to render an individualized explanation" by drawing arguments from § 3553

"for a sentence different than the one ultimately imposed," the party sufficiently "preserves its claim." 578. As in Lynn, we conclude that Scott's "arguments in the district court for a different sentence than the one he received preserved his claim of procedural sentencing error on appeal." Lynn, 592 F.3d at 581. the district court These arguments "sufficiently alert[ed] of its responsibility to render an Lynn, 592 F.3d at

individualized explanation addressing those arguments." 578.

Id. at

Therefore, we must review any procedural sentencing error 3

for

abuse

of

discretion

and

reverse

unless

the

error

was

harmless.

Id. at 579. The district court erred because it failed to explain

why it imposed sex offender treatment as a condition of Scott's supervised release. See Lynn, 592 F.3d at 581-82. The error

was not harmless because, inter alia, the district court's lack of explanation for imposing this condition resulted in "a record insufficient to permit even routine review for substantive

reasonableness." marks omitted).

Id. at 582 (omission and internal quotation

Accordingly, committed procedural

we error

conclude and

that

the its

district discretion

court when

abused

imposing the sentence. * remand for resentencing.

We therefore vacate Scott's sentence and 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

Because we find that Scott's sentence is procedurally unreasonable, we do not consider whether his sentence is substantively unreasonable.

*

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