UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4859

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL LAMONT BOOMER,

Defendant - Appellant.

No. 09-7412

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL LAMONT BOOMER,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Richmond. Henry E. Hudson, District 

Judge. (3:04-cr-00089-HEH-1)

Submitted: October 29, 2010 Decided: November 19, 2010

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.
2

Vacated and remanded by unpublished per curiam opinion.

Mark Bodner, Fairfax, Virginia, for Appellant. Neil H. MacBride, 

United States Attorney, Angela Mastandrea-Miller, Assistant 

United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Lamont Boomer appeals from the district 

court’s orders imposing a new sentence after granting 28 

U.S.C.A. § 2255 (West Supp. 2010) relief and Boomer’s motion for 

a sentence reduction under 18 U.S.C. § 3582(c) (2006). We 

vacate the orders and remand for resentencing consistent with 

this opinion.

On appeal, Boomer contends that the district court 

erred in failing to consider his request for a sentence 

reduction based on the sentencing disparity between crack and 

powder cocaine when imposing sentence. The district court does 

not err if, when sentencing a defendant, it concludes “that the 

crack/powder disparity yields a sentence ‘greater than 

necessary’ to achieve [18 U.S.C.] § 3553(a)’s [(2006)] 

purposes.” Kimbrough v. United States, 552 U.S. 85, 110 (2007). 

Rather, under the advisory Sentencing Guidelines, “district 

courts are entitled to reject and vary categorically from the 

crack-cocaine Guidelines based on a policy disagreement with 

those Guidelines.” Spears v. United States, ___ U.S. ___, 129 

S. Ct. 840, 843-44 (2009). The district court is not required 

to apply a one-to-one ratio; Spears merely permits a district 

court to substitute its own ratio if it determines the 

sentencing disparity is unwarranted.
4

We review a sentence for reasonableness under an abuse 

of discretion standard. Gall v. United States, 552 U.S. 38, 51 

(2007). This review requires appellate consideration of both 

the procedural and substantive reasonableness of a sentence. 

Id. Procedural reasonableness is determined by reviewing 

whether the district court properly calculated the defendant’s 

advisory Guidelines range and then considered the 18 U.S.C. 

§ 3553(a) factors, analyzed any arguments presented by the 

parties, and sufficiently explained the selected sentence. Id.

at 49-51. “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).

Here, the district court did not explicitly address 

Boomer’s sentencing disparity argument. In fact, the court 

stated that “the crack disparity will be considered with respect 

to the motion under 3582(c).” Although it is possible that the 

court recognized its discretion to vary downward and decided 

that the two-level reduction in the upcoming 3582(c) proceeding 

would be sufficient, the record is silent on the court’s 

reasoning on this issue.

We conclude that the record is insufficient to 

determine whether the district court knew that it had the 
5

discretion to consider the sentencing disparity and, if so, what 

its reasoning was in deciding to decline to exercise its 

discretion. We therefore vacate the sentencing and § 3582(c) 

orders and remand the sentence for the district court to address 

Boomer’s sentencing disparity argument. We note that the 

district court may then need to revise its decision when 

reentering its order regarding the § 3582(c) motion. However, 

we do not express an opinion on the merits of Boomer’s 

sentencing disparity argument or the resolution of the § 3582(c) 

motion.

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.

VACATED AND REMANDED