UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4163

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL JAMALL YORK, a/k/a Michael Kashim York,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. James A. Beaty, Jr., 

Chief District Judge. (1:07-cr-00176-JAB-1)

Submitted: April 30, 2010 Decided: May 25, 2010

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro, 

North Carolina, for Appellant. Anna Mills Wagoner, United 

States Attorney, Lisa B. Boggs, Assistant United States 

Attorney, Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Michael Jamall York appeals his sentence after 

pleading guilty to being a felon in possession of a firearm in 

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). On 

appeal, he contends that the district court erred in applying 

the sentencing guidelines, and his sentence is procedurally and 

substantively unreasonable, because the district court ordered 

that his sentence run consecutive to an undischarged term of 

state imprisonment without discussing or considering the policy 

statement and factors under 18 U.S.C. § 3553(a)(5) (2006); U.S. 

Sentencing Guidelines Manual § 5G1.3(c) (2007). We affirm.

We review a sentence imposed by the district court

under a deferential abuse-of-discretion standard. See Gall v. 

United States, 552 U.S. 38, 51 (2007). The first step in this 

review requires us to ensure that the district court committed 

no significant procedural error, such as improperly calculating 

the guideline range, failing to consider the 18 U.S.C. § 3553(a) 

(2006) factors, or failing to adequately explain the sentence. 

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We 

then consider the substantive reasonableness of the sentence

imposed, taking into account the totality of the circumstances. 

Gall, 552 U.S. at 51. On appeal, we presume that a sentence 

within a properly calculated guideline range is reasonable. 

United States v. Allen, 491 F.3d 178, 192 (4th Cir. 2007).
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In sentencing, the district court should first 

calculate the advisory guideline range and give the parties an 

opportunity to argue for whatever sentence they deem 

appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th 

Cir. 2007). The district court should then consider the 

relevant 18 U.S.C. § 3553(a) (2006) factors to determine whether 

they support the sentence requested by either party. Id. When 

rendering a sentence, the district court must make and place on 

the record an individualized assessment based on the particular 

facts of the case. Carter, 564 F.3d at 328, 330. 

In explaining the chosen sentence, the “sentencing 

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,” 

but when the district court decides simply to apply the 

guidelines, “doing so will not necessarily require lengthy 

explanation.” Rita v. United States, 551 U.S. 338, 356 (2007). 

Where a party “presents nonfrivolous reasons for imposing a 

different sentence, however, the judge will normally go further 

and explain why he has rejected those arguments.” Id. at 357. 

While a district court must consider the statutory factors and 

explain its sentence, it need not explicitly reference § 3553(a) 

or discuss every factor on the record, particularly when the 

district court imposes a sentence within a properly calculated 
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guideline range. United States v. Johnson, 445 F.3d 339, 345 

(4th Cir. 2006).

The probation officer determined that York’s guideline 

range was 92 to 115 months based on an offense level of twentythree and criminal history category VI. Because York had 

accumulated twenty-one criminal history points even though many 

of his convictions were not counted, and he had failed to ever 

obtain stable employment, the probation officer recommended a 

sentence at the high end of the guideline range to run 

consecutive to York’s undischarged term of state imprisonment he 

was then serving for unrelated conduct. The probation officer

also noted an upward departure under USSG § 4A1.3(a)(1) may be 

warranted; the projected release date on his undischarged state 

sentence was August 3, 2010; and that under USSG § 5G1.3(c), the 

district court could order that his sentence run concurrent, 

partially concurrent, or consecutive to the state sentence to 

achieve a reasonable punishment for the instant offense.

At sentencing, York withdrew his only objection to the 

presentence report. The district court adopted the guideline 

calculations and invited York to present “any other factors” he 

wanted to present. York acknowledged he had an extensive 

criminal history and noted it was impacting not only the time he 

was then serving but also the instant charge by bringing his 

guideline range close to the statutory maximum of 120 months. 
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Counsel argued that a letter written by York demonstrated that

he was “trying to make amends and direct himself to learning 

some new vocations and habits,” and he requested that the 

district court consider the “lower end” of the guidelines 

“knowing full well he must serve the state court sentence and 

then he must start serving the federal court sentence.”

The Government argued that there were grounds for an 

upward departure under USSG § 4A1.3(a)(1) because York began 

committing crimes at the age of seventeen and consistently 

continued to commit offenses; and even though he was not 

assessed criminal history points for many of his crimes, he had 

well above the number of points needed for a criminal history 

category VI. In lieu of departing upward, the Government 

requested that the district court sentence York at the highest 

end of his guideline range and run the sentence consecutive to 

his undischarged state sentence for an unrelated offense. After 

the Government spoke, the district court asked York if he had 

anything further, and he responded, “No, Your Honor. Again, the 

focus of the request to the Court is the same and hope the Court 

would look at any possibility of concurrent sentences.”

The district court sentenced York at the lower end of 

his 92 to 115-month guideline range to 100 months in prison 

consecutive to his undischarged state prison term for unrelated 

conduct, explaining that this sentence was “sufficient, but not 
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greater than necessary, to meet the sentencing objectives of 

punishment and deterrence in this case.” In arriving at this 

sentence, the court explained it had taken “the guidelines into 

account on an advisory basis”; had “taken into account the 

Government’s position paper in this case to the extent the 

Defendant would be subject to an upward departure should the 

Court be inclined to do so given Defendant’s extensive criminal 

history record”; and had taken “all matters into account, 

including reviewing the presentence report with respect to the 

Defendant’s history and characteristics and as well as reviewing 

the Defendant’s own letter where he expresses remorse.”

On appeal, York argues that the district court erred 

in applying the sentencing guidelines, and that his sentence is 

procedurally and substantively unreasonable, because the 

district court did not explicitly consider or discuss the policy 

statement and accompanying factors set out in the commentary 

pursuant to 18 U.S.C. § 3553(a)(5); USSG § 5G1.3(c) when it 

ordered that his sentence run consecutive to his undischarged 

state sentence. Because York neither cited the policy statement 

in the district court nor argued that the district court should 

run the instant sentence concurrent to his undischarged state 

prison term based on the policy statement, we review his 

procedural sentencing claims for plain error. See United States 

v. Lynn, 592 F.3d 572 (4th Cir. 2010); United States v. Rouse, 
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362 F.3d 256 (4th Cir. 2004). As we explained in Lynn, a party 

is not required to lodge an explicit objection after the 

district court’s explanation to preserve a claim that the court 

provided inadequate explanation for its sentence. Rather, “[b]y 

drawing arguments from § 3553 for a sentence different than the 

one ultimately imposed, an aggrieved party sufficiently alerts 

the district court of its responsibility to render an 

individualized explanation addressing those arguments, and thus 

preserves its claim.” Lynn, 592 F.3d at 578. However, “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.” 

Id. at 579 n.4. Since York did not cite the policy statement in 

the district court or argue that the instant sentence should run 

concurrent to his undischarged sentence based on the policy 

statement, he did not preserve his procedural sentencing claims.

Therefore, York must show that the district court’s 

explanation in this case constituted plain error affecting his 

substantial rights. See United States v. Massenburg, 564 F.3d 

337, 342-43 (4th Cir. 2009). We conclude that York has not made 

this showing. We further conclude that York’s sentence is not 

substantively unreasonable. Based on its consideration of all 

matters, including its review of the presentence report, York’s 
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own letter expressing remorse, and the Government’s argument 

that York’s extensive criminal history warranted an upward 

departure, the district court granted York’s request for a 

lower-end guideline sentence, rejected the Government’s request 

for a high-end guideline sentence, but granted its request to 

impose the sentence consecutive to York’s undischarged state 

sentence. This decision was consistent with USSG § 5G1.3(c), as 

it resulted in a reasonable punishment for the instant offense.

We therefore affirm the district court’s judgment. 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