UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4659

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARRYL TERRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Malcolm J. Howard,

Senior District Judge. (7:13-cr-00116-H-1)

Submitted: March 26, 2015 Decided: April 7, 2015

Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. Thomas G. Walker, United States Attorney, Jennifer 

P. May-Parker, Phillip A. Rubin, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Darryl Terry pled guilty to possession of a firearm by a 

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012), 

and was sentenced to 110 months’ imprisonment. Terry appeals, 

challenging the procedural reasonableness of his sentence. For 

the following reasons, we affirm.

At sentencing Terry sought a downward variance, asserting 

that his personal history and characteristics were mitigating 

factors and arguing that, in essence, the criminal history 

category overstated the seriousness of his history. The 

district court denied Terry’s request and sentenced him at the 

bottom of the Guidelines range.

On appeal, Terry asserts that the district court erred by 

failing to address his arguments for a downward variance and 

failing to explain why it rejected those arguments in imposing a 

within-Guidelines sentence. The Government responds that the 

district court expressly rejected the variance request and its 

reasons were clear based on the hearing’s context. 

Alternatively, the Government asserts that any error by the 

district court was harmless. 

A sentence is procedurally reasonable if the district court 

properly calculates the defendant’s advisory Guidelines range, 

gives the parties an opportunity to argue for an appropriate 

sentence, considers the § 3553(a) factors, does not rely on 
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clearly erroneous facts, and sufficiently explains the selected 

sentence. See Gall v. United States, 552 U.S. 38, 49-51 (2007). 

As we have explained, “[r]egardless 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). The explanation must be sufficient to allow for 

“meaningful appellate review,” such that we need “not guess at 

the district court’s rationale.” Id. at 329, 330 (internal 

quotation marks omitted).

Where, as here, the defendant properly preserves the issue 

of procedural reasonableness below, this court must reverse 

unless the error was harmless. United States v. Lynn, 592 F.3d 

572, 576 (4th Cir. 2010). The government bears the burden of 

demonstrating “that the error did not have a substantial and 

injurious effect or influence on the result [such that this 

court] can say with fair assurance that the district court’s 

explicit consideration of the defendant’s arguments would not 

have affected the sentence imposed.” United States v. Boulware, 

604 F.3d 832, 838 (4th Cir. 2010) (internal quotation marks and 

alterations omitted).

After reviewing the sentencing transcript, we conclude that 

the district court’s explanation was insufficient to render the 
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sentence procedurally reasonable. The court did not expressly 

address why it rejected Terry’s arguments for a downward 

variance or why it selected a 110-month sentence. Such a 

failure constitutes procedural error. Lynn, 592 F.3d at 585.

Nevertheless, the government has satisfied its burden of 

demonstrating that the district court’s error was harmless. The 

district court confirmed its familiarity with Terry’s background 

and personal circumstances as relevant to the § 3553(a) 

sentencing factors when it adopted the presentence report, 

ordered child support, and referenced a letter in support of 

Terry that it had received and read. Additionally, Terry’s 

arguments for a downward variance were not persuasive, 

especially in light of his criminal history. See Boulware, 604 

F.3d at 839-40 (explaining that comparative weakness of a 

defendant’s arguments for a lower sentence is one reason to 

decline to remand a case for further explanation). Moreover, 

the sentencing transcript reveals that the district court 

considered Terry’s arguments for a downward variance, as this 

was the only issue contested at sentencing, and the court 

imposed sentence immediately after hearing the attorneys’ 

arguments. Thus, we are persuaded that, in this case, any error 

in the district court’s explanation for the sentence it imposed 

is harmless and that remand is not warranted. 
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Accordingly, we affirm Terry’s sentence. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED