UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4641

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JESUS TORRES-AGUIRRE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:09-cr-00269-BR-1)

Submitted: April 24, 2012 Decided: June 5, 2012

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, 

North Carolina, for Appellant. William Ellis Boyle, OFFICE OF 

THE UNITED STATES ATTORNEY, Jennifer P. May-Parker, Assistant 

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

Unpublished opinions are not binding precedent in this circuit.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

Jesus Torres-Aguirre appeals his conviction and the 

144-month sentence imposed upon him after his guilty plea to 

conspiracy to distribute more than 5 kilograms of cocaine, more 

than 50 grams of cocaine base, and a quantity of heroin. 

Torres-Aguirre’s counsel has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), in which he states that he has 

divined no meritorious grounds for appeal but questions whether 

Torres-Aguirre’s trial counsel was unconstitutionally 

ineffective with respect to several aspects of his sentencing. 

Having reviewed the record, we affirm Torres-Aguirre’s 

conviction but vacate his sentence and remand the case to the 

district court for resentencing.

We review Torres-Aguirre’s sentence for 

reasonableness, applying an abuse of discretion standard. 

Gall v. United States, 552 U.S. 38, 51 (2007). A sentence 

imposed by a district court is procedurally unreasonable if the 

district court committed a significant procedural error, “such 

as failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as mandatory, failing 

to consider the [18 U.S.C. § 3553(a) (2006)] factors, selecting 

a sentence based on clearly erroneous facts, or failing to 

adequately explain the chosen sentence.” Id.
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Our precedent insists upon an adequate explanation of 

the sentence imposed: “Regardless of whether the district court 

imposes an above, below, or within-Guidelines sentence, it must 

place on the record an individualized assessment based on the 

particular facts of the case before it.” United States v. 

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation 

marks omitted). This requirement is not overly onerous. Where 

the district court imposed a within-Guidelines sentence, the 

explanation may be “less extensive, while still individualized.” 

United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009), 

cert. denied, 130 S. Ct. 2128 (2010). Moreover, the district 

court “need not robotically tick through § 3553(a)’s every 

subsection;” it must only provide “some indication” that it 

considered the § 3553(a) factors with respect to the defendant 

before it and also considered any nonfrivolous arguments raised 

by the parties at sentencing. United States v. Montes-Pineda, 

445 F.3d 375, 380 (4th Cir. 2006). 

Nevertheless, “[t]he district court must ‘state in 

open court’ the particular reasons supporting its chosen 

sentence.” United States v. King, 673 F.3d 274, 283 (4th Cir. 

2012) (quoting 18 U.S.C. § 3553(c) (2006)). And, while the 

district court’s explanation “need not be elaborate or lengthy,” 

Johnson, 587 F.3d at 639, it must be sufficient to allow for 

“‘meaningful appellate review,’” Carter, 564 F.3d at 330 
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(quoting Gall v. United States, 552 U.S. 38, 50 (2007)), such 

that the appellate court need “not guess at the district court’s 

rationale.” Id. at 329.

In this case, Torres-Aguirre preserved his challenge 

to the adequacy of the district court’s explanation “[b]y 

drawing arguments from § 3553 for a sentence different than the 

one ultimately imposed.” United States v. Lynn, 592 F.3d 572, 

578 (4th Cir. 2010). Thus, our review is for abuse of 

discretion, and any error must result in reversal unless it was 

harmless. Id. at 579.

As the record reveals, when the district court 

sentenced Torres-Aguirre, it did not explain its selected 

sentence in any detail, made no reference to any of the factors 

enumerated in 18 U.S.C. § 3553(a) (2006), and failed to give 

Torres-Aguirre’s “nonfrivolous reasons for imposing a different 

sentence” explicit consideration. Id. at 581 (quoting Rita v. 

United States, 551 U.S. 338, 357 (2007)). We conclude that the 

district court erred in leaving the record effectively bereft of 

any reason for the sentence that it imposed. See Carter, 564 

F.3d at 330.

Nor can we deem the district court’s error harmless. 

Even though “the extent of harm caused by [the] procedural 

sentencing error [is] not immediately clear” in light of the 

fact that Torres-Aguirre received a sentence that was well below 
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the applicable Guidelines range, Lynn, 592 F.3d at 585, we 

cannot determine on the basis of the record “why the district 

court deemed the sentence it imposed appropriate.” Id. at 582 

(quoting Carter, 564 F.3d at 330). Torres-Aguirre argued for a 

sentence lower than the one that the district court ultimately 

imposed, and the district court’s rejection of his nonfrivolous 

arguments was entirely without explanation. Because we are left 

only to speculate regarding the district court’s reasons for 

choosing the sentence that it did, we vacate Torres-Aguirre’s 

sentence and remand the case for resentencing. See id.; Carter, 

564 F.3d at 330. Given this disposition of the appeal, we have 

no occasion to address the other sentencing errors asserted in 

counsel’s Anders brief.

In accordance with Anders, we have reviewed the entire 

record in this case and have found no other meritorious issues 

for appeal. We therefore affirm Torres-Aguirre’s conviction, 

vacate his sentence, and remand for resentencing. This court 

requires that counsel inform Torres-Aguirre, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Torres-Aguirre requests that a petition be 

filed, but counsel believes that such a petition would be 

frivolous, then counsel may move in this court for leave to 

withdraw from representation. Counsel’s motion must state that 

a copy thereof was served on Torres-Aguirre.
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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