UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4117

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN LAMONT JACKSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Greenville. Henry M. Herlong, Jr., Senior

District Judge. (6:09-cr-00282-GRA-3)

Submitted: September 28, 2010 Decided: October 15, 2010

Before MOTZ, GREGORY, and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South 

Carolina, for Appellant. William N. Nettles, United States 

Attorney, E. Jean Howard, Assistant United States Attorney, 

Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kevin Lamont Jackson appeals from his 57-month 

sentence imposed pursuant to his guilty plea to a crack cocaine 

conspiracy. On appeal, he claims that the district court did 

not adequately consider the statutory sentencing factors and 

failed to adequately explain the sentence imposed. We vacate 

and remand for further proceedings.

Jackson’s presentence report (“PSR”) determined that 

the Guidelines range was 57 to 71 months. At his sentencing 

hearing, neither party objected, and the court adopted the PSR’s 

findings. The court then heard from the parties on the 

appropriate sentence. Jackson’s counsel argued for a variance 

sentence based upon (1) the crack/powder cocaine disparity and 

(2) Jackson’s age (he was a teenager when he committed the 

crime). Counsel contended that a sentence within the range of 

15 to 21 months1

 1 According to counsel, this is the range that would have 

been calculated if Jackson’s offense involved powder rather than 

crack cocaine.

would “be quite a shock” to a twenty-year-old 

with a Criminal History Category I who had never done any prison 

time. Counsel also argued that sentencing Jackson as if his 

crime involved powder cocaine would “satisfy the needs of 

society to punish.” 
3

The court questioned Jackson about his employment 

history, noting that Jackson was unemployed between 2007 and 

2009. The court also questioned Jackson about his termination 

from “PTI.”2

The court stated that it considered the “factors under 

18 U.S.C. Section 3553(a) [2006]” and “considered the guidelines 

as advisory only.” The court concluded that “the purposes of 

the statute are accomplished with a guidelines sentence.” The 

court offered no further reasoning or findings and imposed a 

sentence of 57 months. 

 The court appeared to believe that Jackson was 

dropped from PTI because he “started selling drugs again.” 

Jackson responded that he had not sold drugs since entering PTI 

and that he was terminated because of the federal charge against 

him. The Government did not address Jackson’s arguments or 

propose an appropriate sentence.

In evaluating the sentencing court’s explanation of a 

selected sentence, we have consistently held that, while a 

district court must consider the statutory factors and explain 

its sentence, it need not explicitly discuss every factor on the 

record, particularly when the court imposes a sentence within a 

properly calculated Guidelines range. United States v. Johnson, 

445 F.3d 339, 345 (4th Cir. 2006). But, at the same time, the 

 2 Apparently a state pre-trial intervention program.
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district court “must make an individualized assessment based on 

the facts presented.” Gall v. United States, 552 U.S. 38, 50 

(2007). Moreover, the district court must state the 

individualized reasons that justify a sentence, even when 

sentencing a defendant within the Guidelines range. Rita v. 

United States, 551 U.S. 338, 356-57 (2007). The reasons 

articulated by the district court for a given sentence need not 

be “couched in the precise language of § 3553(a),” so long as 

the “reasons can be matched to a factor appropriate for 

consideration . . . and [are] clearly tied [to the defendant’s] 

particular situation.” United States v. Moulden, 478 F.3d 652, 

658 (4th Cir. 2007). 

In United States v. Carter, 564 F.3d 325 (4th Cir. 

2009), we held that, while the individualized assessment of each 

defendant need not be elaborate or lengthy, it must provide a 

rationale tailored to the particular case at hand and be 

adequate to permit appellate review. 564 F.3d at 330. Thus, a 

recitation of the § 3553 factors and purposes is insufficient. 

Likewise, a conclusory statement that a specific sentence is the 

proper one does not satisfy the district court’s 

responsibilities. Id. at 328-29. In addition, we cannot 

presume that the district court adopted the arguments of one of 

the parties while imposing sentence; an appellate court may not 

guess at the district court’s rationale. Id. at 329-30.
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Here, the district court’s reasoning clearly violated

Carter. The court merely stated that the purposes of the 

statute were accomplished by a Guidelines sentence and provided 

no other reasoning. Moreover, the district court did not 

address the undisputed mitigating factors raised by Jackson, and 

the record reflects that the court may have been confused as to 

the reasons that Jackson’s PTI was terminated. 

The Government cites United States v. Hernandez, 603 

F.3d 267 (4th Cir. 2010), to support its contention that the 

district court’s reasoning was sufficient. In Hernandez, we

reviewed Hernandez’s claim that the district court did not 

provide individualized reasoning for plain error, as Hernandez 

had not objected below. We then determined that the district 

court’s statement that it had considered the § 3553 factors and 

the advisory Guidelines range and concluded that the “purposes 

of the statute are accomplished with a guideline sentence” was 

sufficient. 603 F.3d at 269. We held that, because the 

district court heard argument, considered the statutory factors, 

and imposed the bottom-of-the-Guidelines sentence requested by 

Hernandez, Hernandez’s sentence was not procedurally 

unreasonable. Id. at 271-72. 

While the district court’s reasoning in Hernandez was 

essentially identical to the district court’s reasoning in this 

case, we find Hernandez distinguishable in two important 
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respects: (1) Jackson requested a sentence below the advisory 

Guidelines range and, thus, his claim is reviewed for harmless 

error rather than plain error, see United States v. Boulware, 

604 F.3d 832, 838 (4th Cir. 2010), and (2) Jackson did not 

receive the sentence he requested. Applying Carter, we conclude 

that the district court abused its discretion by failing to 

provide individualized reasoning for the sentence imposed. 

Thus, Jackson’s sentence should be vacated unless we 

determine that the error was harmless. United States v. Lynn, 

592 F.3d 572, 581 (4th Cir. 2010). “To avoid 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 or 

influence on the result.” Id. at 585. The Government argues 

only briefly and conclusorily that any alleged error was 

harmless. Accordingly, we conclude that the record does not 

conclusively show that “explicit consideration of [Jackson’s] 

arguments would not have affected the sentence imposed.” Id.

As such, we vacate Jackson’s sentence and remand for 

the district court to properly address Jackson’s arguments for a 

lower sentence and provide individualized reasoning for the 

sentence imposed. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 
7

materials before the court and argument would not aid the 

decisional process.

VACATED AND REMANDED