**UN PUBLISHED**  UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 08**  **- 4845** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. RAUL MARTINEZ

- MARTINEZ , Defendant

- Appellant
.

Appeal from the United States District Court for the West ern District of North Carolina , at Charlotte
. Martin K. Reidinger , District Judge. ( 3:07

- cr - 00290

- MR

- 1 )

Submitted : April 27, 2010 Decided: May 1 4 , 2010

Before NIEMEYER, KING , and AGEE, Circuit Judges.
Affirmed in part ; vacated and remanded in part by un published per curiam opinion
. Claire J. Rauscher, Executive Director, Ross H. Richardson, Steven Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Raul Martinez

- Martinez pleaded guilty to illegal reentry of a deported alien who was an aggravated felon and received an eig ht y - nine

- month sentence. Counsel has filed an Anders v. California , 386 U.S. 738 (1967), brief stating that he has discerned no meritorious issues, but that the sentence may be procedurally unreasonable because the court did not adequately explain its rea soning for the sentence, including the refusal to grant a downward variance based on the community, family, and cultural co nnections Martinez

- Martinez established in the United States and the danger he would encounter in returning to his home country of El Salvador. We agree that there is procedural error in determining the sentence and remand for resentencing, but affirm the conviction. Counsel asserts that the district court did not adequately consider the mitigating issues raised by Martinez

- Martinez b efore imposing sentence. T he advisory Sentencing Guidelines range was 77

- 96 months of imprisonment. The district court heard from Martinez

- Martinez’s counsel that it would be dangerous for Martinez

- Martinez to return to El Salvador and that he has attemp ted to be law abiding while in the United States. The court heard from the Government that Martinez

- Martinez has illegally reentered the United States three other times, that his previous sentence for the same type3 of offense of seventy

- eight months did n ot deter Martinez

- Martinez from repeating the same behavior, and that Martinez

- Martinez was arrested on this occasion after driving while severely drunk and hitting three cars, and fleeing the site of the accident. After hearing argument by counsel and a statement by Martinez

- Martinez, the court denied Martinez

- Martinez’s motion for a downward variance without comment. The court then pronounced its sentence and reasoning , stating only that it had considered all the factors of 18 U.S.C. § 3553(a) (2006) in determining the sentence. After United States v. Booker , 54 3 U.S. 220 (2005), this cour t 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 revi ew requires the court 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 § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequat ely explain the chosen
sentence

-- including an explanation for any deviation from the Guidelines r ange.” Gall , 552 U.S. at 51.4 “[I]f a party repeats on appeal a claim of procedural sentencing error . . . which it has made before the district court, we review for abuse of discretion” and will reverse if such an abuse of discretion is found unless t he c ourt 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 sati sfy the appellate court that [the sentencing judge] 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) (internal citations and
q uotation 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 su fficiently “preserves its claim.” Lynn , 592 F.3d at 578. When counsel requests a sentence at the bottom of the Guidelines range or below, the error is preserved. Id. at 581. In a post

- Lynn case, United States v. Thompson , 595 F.3 d 544 (4th Cir. 2010), we explained that "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." 595 F.3d at 546.5 We conclude that, under Lynn , Martinez

- Martinez’s arguments in the district court preserved his claim of procedural sentencing error on appeal. Lynn , 592 F.3d at 581. In particular, Martinez

- Martinez’s counsel requested a downward variance from the Guidelines range. These arguments “sufficiently alert[ed] the di strict court of its responsibility to render an individualized explanation addressing those arguments.” Id. at 57 8. Therefore, we review any procedural sentencing error for abuse of discretion and reverse unless the error was harmless. Id. at 579. Th e district court erred because it failed to explain why it imposed the chosen sentence. See id . at 581

- 82. The
court stated , without discussion, that it took into account the § 3553 sentencing factors. It did not address the mitigating factors raised by Martinez

- Martinez, nor provide any other reason for choosing the sen tence imposed. Moreover, this c ourt cannot presume that the district court simply adopted the Government’s arguments. The error was not harmless because the district court’s lack of exp lanation for imposing this condition resulted in “a record insufficient to permit even routine review for substantive reasonableness.” Id. at 582 (citation and quotation marks omitted). We therefore affirm the conviction, but vacate th e sentence and rema nding for re sentencing. In accordance with6 Anders , we have reviewed the record in this case and have found

no other meritorious issues for appeal. We dispense with oral argument because the facts and legal conten tions are adequately presented in the mat erials before the court and argument would not aid the decisional process.
AFFIRMED IN PART ; VACATED AND REMANDED IN PART