UNPUBLISHED

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 Western 

District of North Carolina, at Charlotte. Martin K. Reidinger, 

District Judge. (3:07-cr-00290-MR-1)

Submitted: April 27, 2010 Decided: May 14, 2010

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished

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Unpublished opinions are not binding precedent in this circuit.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

Raul Martinez-Martinez pleaded guilty to illegal 

reentry of a deported alien who was an aggravated felon and 

received an eighty-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 reasoning for the sentence, including the 

refusal to grant a downward variance based on the community, 

family, and cultural connections 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 before imposing sentence. The 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 attempted 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 type 
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of offense of seventy-eight months did not 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, 543 U.S. 220 (2005), 

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 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 adequately explain the chosen 

sentence--including an explanation for any deviation from the 

Guidelines range.” Gall, 552 U.S. at 51. 
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“[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 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 [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 

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. 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.3d 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. 
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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 district court of its responsibility 

to render an individualized explanation addressing those 

arguments.” Id. at 578. Therefore, we review any procedural 

sentencing error for abuse of discretion and reverse unless the 

error was harmless. Id. at 579. 

The 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 sentence imposed. Moreover, this court 

cannot presume that the district court simply adopted the 

Government’s arguments. The error was not harmless because the 

district court’s lack of explanation 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 the 

sentence and remanding for resentencing. In accordance with 
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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 contentions are adequately 

presented in the materials before the court and argument would 

not aid the decisional process. 

AFFIRMED IN PART;

VACATED AND REMANDED IN PART