UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4250

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

AVERY DEMOND JETER,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior 

District Judge. (7:07-cr-00695-GRA-1)

Submitted: December 20, 2010 Decided: January 13, 2011

Before KING, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Benjamin T. Stepp, Assistant Federal Public Defender, 

Greenville, South Carolina, for Appellant. William N. Nettles, 

United States Attorney, Maxwell Cauthen, Assistant United States 

Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Avery Demond Jeter pled guilty to being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1) (2006) (count 

one), and possession of a firearm in furtherance of a drug 

trafficking crime, 18 U.S.C. § 924(c)(1) (2006) (count three). 

The district court initially imposed a sentence of 120 months on 

count one and 262 months on count three, to run concurrently to 

count one. By joint motion of the parties, we remanded for 

resentencing to correct the sentence because a sentence pursuant 

to § 924(c) is required by statute to run consecutive to any 

other sentence. At resentencing, the district court again 

imposed a total sentence of 262 months’ imprisonment, but 

imposed 120 months on count one and a consecutive 142 months on 

count three. On appeal, Jeter challenges his 262-month 

sentence, arguing the district court did not adequately explain 

the reason for its chosen sentence. We affirm.

This court reviews a sentence for reasonableness, 

using an abuse of discretion standard of review. 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. United States v. Evans, 526 F.3d 

155, 161 (4th Cir. 2008). Procedural errors include “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 
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[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence 

based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence.” Gall, 552 U.S. at 51.

“[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.” United States v. 

Lynn, 592 F.3d 572, 576 (4th Cir. 2010). 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 citation and 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.” Lynn, 592 F.3d at 578; see 

also United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 

2010) (“[A] defendant need only ask for a sentence outside the 

range calculated by the court prior to sentencing in order to 

preserve his claim for appellate review.”). 
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Jeter asserts that the district court committed 

procedural error by failing to adequately explain the sentence 

imposed. Jeter’s arguments in the district court for a sentence 

below the recommended Guidelines range preserved his claim of 

procedural sentencing error on appeal. Id. These arguments 

“sufficiently alert[ed] the district court of its responsibility 

to render an individualized explanation addressing those 

arguments.” Lynn, 592 F.3d at 578. Therefore, we review any 

procedural sentencing error for abuse of discretion and reverse 

unless the error was harmless. Id. at 579. This standard 

requires that the Government bear the burden of establishing 

that the error did not affect Jeter’s substantial rights. 

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

Specifically, the Government “may avoid reversal only if it 

demonstrates that the error did not have a substantial and 

injurious effect or influence on the result and we can say with 

fair assurance that the district court’s explicit consideration 

of the defendant’s arguments would not have affected the 

sentence imposed.” United States v. Boulware, 604 F.3d 832, 838 

(4th Cir. 2010) (alterations and internal quotation marks 

omitted). 

We have reviewed the record and agree with the 

Government that any procedural sentencing error in this case was 

harmless, as we have no doubt that the district court assessed 
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Jeter’s arguments in applying the § 3553(a) factors. See id. at 

839. At the first two sentencing hearings, the district court 

afforded Jeter an opportunity to allocute and defense counsel an 

opportunity to argue for a sentence below the Guidelines range;

namely, overrepresentation of criminal history, Jeter’s troubled 

childhood, and new parental responsibilities. The court 

addressed in detail Jeter’s extensive criminal history, ensured 

that all of his objections had been addressed, and stated that 

it had considered the § 3553(a) factors before imposing 

sentence. At resentencing, the court explicitly stated that it 

had considered Jeter’s request for a downward variance based on 

his work in prison. Additionally, in imposing the same total 

sentence as previously imposed, the court explicitly referenced 

its consideration of several of the § 3553(a) factors. 

We are satisfied that the district court considered 

the parties’ arguments and had a reasoned basis for the sentence 

imposed, Boulware, 604 F.3d at 837, and that this sentence would 

not be impacted by a more thorough explanation. See also Rita 

v. United States, 551 U.S. 338, 359 (2007) (“Where . . . the 

record makes clear that the sentencing judge considered the 

evidence and arguments, we do not believe the law requires the 

judge to write more extensively.”). Accordingly, we affirm 

Jeter’s sentence. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 
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materials before the court and argument would not aid the 

decisional process.

AFFIRMED