US v. Charles Hardee


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-01172-TLW-1. Copies to all parties and the district court/agency. [998426039] [09-5103]

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US v. Charles Hardee Doc. 0 Case: 09-5103 Document: 31 Date Filed: 09/16/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5103 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES A. HARDEE, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-01172-TLW-1) Submitted: August 31, 2010 Decided: September 16, 2010 Before DUNCAN, AGEE, and DAVIS, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. James P. Rogers, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, William E. Day, II, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-5103 Document: 31 Date Filed: 09/16/2010 Page: 2 PER CURIAM: Charles A. Hardee appeals the 108-month sentence he received after pleading guilty to possession of child pornography in violation of 18 U.S.C.A. 2252A(a)(5)(B) (West 2000 & Supp. 2010). In the district court, Hardee moved for a sentence below the Guideline range, and the Government moved for an upward of departure. their Both parties The presented court witnesses denied in both support motions. district motions, then heard further argument for sentencing within the applicable Guideline range. at the low end of this While Hardee argued for a sentence the district court sentenced range, Hardee at the top of that range, to 108 months' imprisonment. On appeal, Hardee argues that his sentence is procedurally unreasonable because the district court failed to provide an adequate explanation of the chosen sentence or to individually tailor his sentence by applying the relevant 18 U.S.C. 3553(a) is (2006) factors. He also asserts that we his sentence substantively unreasonable. Although affirm Hardee's conviction, which he does not challenge on appeal, we vacate his sentence and remand to the district court for resentencing. This court reviews a sentence for reasonableness, Gall v. United using an abuse of discretion standard of review. States, 552 U.S. 38, 51 (2007). 2 The first step in this review Case: 09-5103 Document: 31 Date Filed: 09/16/2010 Page: 3 requires us to ensure that the district court committed no significant procedural error. 155, 161 (4th Cir. 2008). consider explain the the 3553(a) chosen United States v. Evans, 526 F.3d Procedural errors include "failing to factors" or Gall, "failing 552 U.S. to at adequately 51. The sentence." district court must make an individualized assessment based on the facts presented by applying the relevant 3553(a) factors to the circumstances of the case. Id. at 50-51. While the district 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), the district judge "`should set 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.'" United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). In cases where, as here, the district court imposes a within-Guideline sentence, while the district court may "provide a less extensive, States v. still individualized, explanation." United Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010). to allow for court However, that explanation must be sufficient appellate guess 3 at review" the such district that the "meaningful need "not appellate court's Case: 09-5103 Document: 31 Date Filed: 09/16/2010 Page: 4 rationale." Carter, 564 F.3d at 329-30 (internal quotation marks omitted). It is undisputed that Hardee preserved his claim of procedural error by moving for a sentence below the Guideline range, and, when this motion was denied, by arguing for a sentence at the low end of the Guideline range. v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). district court's consideration of Hardee's United States Thus, we review the arguments and the sufficiency of its explanation of the chosen sentence for abuse of discretion. We conclude that the district court abused its discretion in sentencing Hardee. While the district court heard extensive testimony from the parties at the sentencing hearing, and gave the parties the multiple court opportunities to argue for specific these sentences, nor neither its specifically for addressed chosen arguments explained reasons the sentence. We will reverse this type of preserved error unless Id. at 581. "To avoid we find that the error was harmless. reversal for non-constitutional, non-structural errors like [the one presented here], the party defending the ruling below . . . bears the burden of demonstrating that the error was harmless, i.e. that it did not have a substantial and injurious effect on the result." omitted). Id. at 585 (internal quotation marks and citation The Government argues in its brief that the district 4 Case: 09-5103 Document: 31 Date Filed: 09/16/2010 Page: 5 court did not procedurally err in imposing sentence, but does not argue in the alternative that any alleged error was harmless. harmless. Having found procedural error, we do not find it We cannot conclude that the district court's "explicit consideration of [Hardee's] arguments would not have affected the sentence imposed." Id. Accordingly, although we affirm Hardee's conviction, which is unchallenged, we vacate his sentence 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. AFFIRMED IN PART, VACATED IN PART, AND REMANDED Because we find Hardee's sentence procedurally infirm, we do not address its substantive reasonableness. See Carter, 564 F.3d at 330 n.4 ("Having found the sentence procedurally unreasonable, . . . we cannot review the sentence for substantive reasonableness."); United States v. Stephens, 549 F.3d 459, 465 (4th Cir. 2008) ("If, and only if, the district court's sentencing decision is procedurally sound, we will then consider [its substantive reasonableness].). Accordingly, our decision to vacate Hardee's sentence should not be construed on remand as evidencing any view as to the length of the sentence that is substantively appropriate. 5

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