UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4814

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VINCENT SUMPTER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan,

Chief District Judge. (5:05-cr-00246-FL)

Submitted: June 17, 2009 Decided: April 7, 2011

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, 

Greensboro, North Carolina, for Appellant. George E. B. 

Holding, United States Attorney, William M. Gilmore, Assistant 

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Vincent Sumpter appeals his sentence on a conviction, 

following a jury trial, to aiding and abetting and conspiracy to 

unlawfully obstruct, delay and affect commerce by robbery, in 

violation of 18 U.S.C. § 1951 (2006) (Count One),1 and on a 

guilty plea to unlawfully obstructing, delaying, and affecting 

commerce by robbing Friedman’s, and aiding and abetting, in 

violation of 18 U.S.C. §§ 1951, 2 (2006) (Count Six); 

brandishing firearms in furtherance of a crime of violence, the 

Friedman’s robbery, and aiding and abetting, in violation of 18 

U.S.C. §§ 924(c), 2 (2006) (Count Seven); possession of firearms 

after having previously had been convicted of a felony and 

aiding and abetting, in violation of 18 U.S.C. §§ 922(g)(1), 

924, 2 (2006) (Count Eight).2

 1 In furtherance of this conspiracy, the Grand Jury alleged 

three overt acts: First, that Sumpter and one other person on 

April 22, 2005, robbed the Perry Brothers jewelry store in 

Raleigh, North Carolina (“Perry Brothers”), at gunpoint; second 

that Sumpter and others on April 29, 2005, robbed the Ora 

jewelry store in Raleigh, North Carolina (“Ora”), at gunpoint; 

and third that Sumpter and others on June 8, 2005, robbed the 

Friedman’s jewelry store in Dunn, North Carolina (“Friedman’s”), 

at gunpoint.

Following two sentencing hearings, 

during which Sumpter’s objections to the Presentence 

Investigation Report (“PSR”) were fully argued and considered, 

2 The jury found Sumpter not guilty of Counts Two through 

Five of the indictment, which charged Hobbs Act and firearms 

violations relative to the Perry Brothers and Ora robberies.
3

the district court determined Sumpter qualified as both a career 

criminal and an armed career offender, and sentenced him to a 

total of 584 months’ imprisonment (240 months concurrently on 

Counts One and Six, 500 months on Count Eight concurrent with 

Counts One and Six, and 84 months on Count Seven consecutively 

to Counts One, Six, and Eight), five years of supervised release 

(three years each on Counts One and Six concurrently with five 

years each on Counts Seven and Eight), and ordered payment of 

the statutory special assessment of $400, restitution in the 

amount of $5,424.39 jointly and severally with all codefendants, 

and a fine in the amount of $250,000.

On appeal, Sumpter (1) challenges the district

court’s denial of a two-level reduction in his offense level for 

acceptance of responsibility, pursuant to U.S. Sentencing 

Guidelines Manual § 3E1.1, (2) claims the district court’s 

explanation of its reasons for the sentence were inadequate, and

(3) claims the district court erred in failing to make findings 

concerning his ability to pay prior to imposing the $250,000 

fine. We affirm Sumpter’s conviction, vacate his sentence and 

remand for resentencing. 

Sumpter first challenges the district court’s refusal 

to grant him a two-level reduction of his offense level for 

acceptance of responsibility. He claims that, because the form 

of the indictment was such that all three robberies were 
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included as objects in the single conspiracy charge of Count 

One, he was forced to go to trial on that charge because, 

despite his admitted involvement in the Friedman’s robbery, he 

was not guilty of participating in either the Perry Brothers or 

Ora robberies. He asserts that had he pled guilty to Count One, 

he would necessarily be admitting to participating in the other 

two robberies even though he did not so participate, and would 

have exposed himself to sentencing based on conduct of all three 

robberies, pursuant to USSG § 1B1.2(d). He claims that, under 

those unique circumstances, the district court should have 

granted him an acceptance of responsibility reduction despite 

the fact he went to trial.

This court reviews a district court’s decision to deny 

an adjustment for acceptance of responsibility for clear error. 

United States v. Pauley, 289 F.3d 254, 261 (4th Cir. 2002). 

Pursuant to USSG § 3E1.1, a reduction for acceptance of 

responsibility is appropriate “[i]f the defendant clearly 

demonstrates acceptance of responsibility for his offense. . .” 

and “is not intended to apply to a defendant who puts the 

government to its burden of proof at trial by denying the 

essential factual elements of guilt, is convicted, and only then 

admits guilt. . . .” USSG § 3E1.1, App. n.2.

Here, prior to trial, at the time Sumpter pled guilty 

to the Friedman’s robbery, the Government’s factual proffer set 
5

forth all the essential factual elements necessary to convict 

him of the conspiracy charged in Count One, which count 

expressly listed the Friedman’s robbery as an overt act in the 

conspiracy. Accordingly, in light of his plea to the Friedman’s 

robbery, Sumpter knew or should have known that a reasonable 

jury would have found him guilty of Count One. As the district 

court noted, that he sought to put the Government to its burden 

on Count One as a trial tactic hoping the jury would not convict 

him of conspiracy in the Friedman’s robbery because he was not 

guilty of the other two robberies, does not support an 

acceptance of responsibility reduction. Moreover, while Sumpter 

did not dispute his guilt on the commission of the Friedman’s 

robbery, he never admitted his guilt in the conspiracy to commit 

the Friedman’s robbery, and thus did not fully accept 

responsibility for all his actions relative to the Friedman’s 

robbery. The record reveals that the district court carefully 

considered all the relevant facts and issues relating to 

Sumpter’s request for an acceptance of responsibility reduction, 

including whether Sumpter accepted responsibility for all the 

actions of, and relating to, the Friedman’s robbery. Under 

these circumstances, we find no clear error in the district 

court’s decision not to award Sumpter an acceptance of 

responsibility reduction. 
6

Sumpter next argues that the district court failed to 

adequately explain the term of imprisonment it imposed, contrary 

to the requirements of 18 U.S.C. § 3553(c) (2006). 

Specifically, he asserts that the reasons given by the district 

court for its sentence, i.e., Sumpter’s career offender status,

the 84-month consecutive term for his guilty plea to a § 924(c) 

offense, and his violent history, constituted an “unacceptably 

sparse rationale” and were redundant because all had been 

considered previously by Congress and the Sentencing Commission 

in developing the advisory guideline range applicable to 

Sumpter’s crime. 

After United States v. Booker, 543 U.S. 220 (2005), we

review a sentence for reasonableness, and “whether inside, just 

outside, or significantly outside the Guidelines range,” we 

apply a “deferential abuse-of discretion standard.” Gall v. 

United States, 552 U.S. 38, 52 (2007). First, we must “ensure 

that the district court committed no significant procedural 

error.” Id. at 51. Only if the sentence is procedurally 

reasonable can we evaluate the substantive reasonableness of the 

sentence, again using the abuse of discretion standard of 

review. Id.; see also United States v. Carter, 564 F.3d 325, 

328 (4th Cir. 2009). In our determination of whether the 

district court committed any significant procedural error, we 

look to any failure in the calculation (or the improper 
7

calculation) of the Guidelines range, the treatment of the 

Guidelines as mandatory, any failure to consider the § 3553(a) 

factors, any selection of a sentence using clearly erroneous 

facts, and any failure to adequately explain the chosen sentence 

and any deviation from the advisory Guidelines range. Gall, 552 

U.S. at 51. The district court “must make an individualized 

assessment based on the facts presented” when rendering a 

sentence, id., applying the relevant § 3553(a) factors to the 

specific circumstances of the case and the defendant, and must 

“state in open court” the particular reasons supporting its 

chosen sentence. Carter, 564 F.3d at 328; see also 18 U.S.C. 

§ 3553(c) (2006). A brief statement of the reasons suffice 

under § 3553(c)(1). Rita v. United States, 551 U.S. 338, 356-57

(2007).

We conclude that the reasons stated by the district 

court following imposition of its 584-month sentence in this 

case were not sufficiently individualized such that we can 

conclude that the sentencing court considered Sumpter “as an 

individual and [his] case as a unique study in the human 

failings that sometimes mitigate, sometimes magnify, the crime 

and the punishment to ensue.” Gall, 552 U.S. at 52 (internal 

quotation marks omitted); Carter, 564 F.3d at 328. As we stated 

in United States v. Lynn, 592 F.3d 572, 584 (4th Cir. 2010), “a 

district court’s explanation of its sentence need not be 
8

lengthy, but the court must offer some ‘individualized 

assessment’ justifying the sentence imposed and rejection of 

arguments for a higher or lower sentence based on § 3553.” We 

express no view of course on the substantive reasonableness of 

the sentence imposed. 

The final issue Sumpter raises on appeal is a 

challenge to the $250,000 fine imposed, on the basis that the 

district court failed to consider the congressionally-mandated 

factors set forth in 18 U.S.C. § 3572 (2006), as to his ability 

to pay. The Government agrees that the sentencing court’s 

failure to make findings concerning Sumpter’s ability to pay a 

fine prior to ordering payment of the fine constitutes 

reversible error. 

This court reviews a district court’s factual findings 

with respect to the imposition of a fine under the “clearly 

erroneous” standard of review. United States v. Aramony, 166 

F.3d 655, 665 (4th Cir. 1999). Pursuant to 18 U.S.C. § 3572(a), 

the district court, prior to imposing a fine, must consider the 

defendant’s income, financial resources, and earning capacity, 

as well as the burden a fine would impose on the defendant or on 

any person financially dependent on the defendant. The district 

court’s findings about a defendant’s ability to pay must be made 

expressly. See United States v. Castner, 50 F.3d 1267, 1277 

(4th Cir. 1995); United States v. Arnoldt, 947 F.2d 1120, 1127 
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(4th Cir. 1991); United States v. Harvey, 885 F.2d 181, 182-83 

(4th Cir. 1989). While the requirement for such findings may be 

satisfied by the district court’s adoption of the PSR that 

includes adequate factual findings to allow effective appellate 

review of the fine imposed, Castner, 50 F.3d at 1277, in this 

case, the probation officer noted that Sumpter had a negative 

net worth of $2,719 and no income, and concluded that Sumpter 

was, without the ability to pay a fine in addition to courtimposed restitution. 

On these facts, we find plain error in the district 

court’s failure to make the required findings relative to 

Sumpter’s ability to pay a fine. Accordingly, we affirm 

Sumpter’s convictions, vacate his sentence, and remand for 

resentencing. In resentencing, we direct the district court to 

give specific consideration to Gall and Carter, to make findings 

concerning Sumpter’s ability to pay a fine, to modify the fine 

if necessary, and to reconcile the installment payment amounts 

in the written judgment with the amounts specified during the 

oral pronouncement of Sumpter’s sentence.3

 3 The written judgment erroneously states that Sumpter’s 

restitution payment while under supervised release is to be 

payable in $100 per month installments, while the oral 

pronouncement of the district court was that such payments be 

made in $50 per month installments.

 
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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