UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4476

UNITED STATES OF AMERICA, 

 Plaintiff – Appellant, 

 v. 

JERRY GASKILL, 

 Defendant – Appellee. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Terrence W. Boyle, 

District Judge. (2:06-cr-00003-BO) 

Argued: December 4, 2008 Decided: March 20, 2009 

Before KING and DUNCAN, Circuit Judges, and Rebecca Beach SMITH, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation. 

Vacated and remanded by unpublished per curiam opinion. 

ARGUED: Banumathi Rangarajan, OFFICE OF THE UNITED STATES 

ATTORNEY, Raleigh, North Carolina, for Appellant. J. Matthew 

Martin, MARTIN LAW FIRM, P.A., Asheville, North Carolina, for 

Appellee. ON BRIEF: George E. B. Holding, United States 

Attorney, Anne M. Hayes, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, 

for Appellant. Thomas C. Manning, MANNING & CROUCH, Raleigh, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Appellee Jerry Gaskill was convicted and sentenced in the 

Eastern District of North Carolina for making materially false 

statements in connection with a matter within the jurisdiction 

of the Army Corps of Engineers, in violation of 18 U.S.C. 

§ 1001. At his sentencing hearing, the district court, over the 

Government’s objection, granted Gaskill a downward variance from 

the advisory Sentencing Guidelines range of fifteen to twentyone months, and imposed a sentence of three years’ probation 

with six months’ home confinement. The Government has appealed 

Gaskill’s sentence, asserting that the court erred in granting 

the downward variance. As explained below, we agree with the 

Government, and thus vacate and remand. 

 

I. 

A. 

 On June 15, 2006, at the conclusion of a four-day trial, a 

jury in Raleigh convicted Gaskill of a single § 1001 offense.1 

That charge, contained in Count Four of a four-count indictment, 

specified that Gaskill had violated § 1001 by making (and aiding 

 1

 Pursuant to § 1001(a)(2) of Title 18, it is unlawful for 

any person to knowingly or willfully “make[] any materially 

false, fictitious, or fraudulent statement or representation” in 

connection with a matter “within the jurisdiction . . . of the 

Government of the United States.” 

2 
and abetting others in making) false, fictitious, and fraudulent 

statements to the Army Corps of Engineers (the “Corps”), by 

submitting and causing to be submitted 

written statements which claimed that the creation of 

[a] 730 foot channel in the Currituck Sound, near 

Corolla, North Carolina, resulted by accident, when, 

in fact, he knew that the channel [had been] 

intentionally dredged, and dredged spoil intentionally 

discharged, through prop washing. 

J.A. 20.2 When Gaskill committed this criminal offense, he was 

serving as the Director of the Ferry Division of the North 

Carolina Department of Transportation (the “NCDOT”). The trial 

evidence, viewed in the light most favorable to the prosecution, 

was essentially as spelled out below. 

1. 

 In 2003, the NCDOT was directed by the North Carolina 

legislature to establish a ferry service from Currituck, an 

unincorporated community in Currituck County on the mainland of 

North Carolina, eastwardly across the Currituck Sound to 

Corolla, a small community in the same county on North 

Carolina’s Outer Banks. As Director of the NCDOT’s Ferry 

Division, Gaskill was charged with establishing the ferry 

service by May 2004. Together with officials of Currituck 

 2

 The indictment is found at J.A. 12-20. Citations herein 

to “J.A. ___” refer to the contents of the Joint Appendix filed 

by the parties in this appeal. 

3 
County — which owned the land essential to establishing the 

ferry service — Gaskill selected an area near the Whalehead Club 

in Corolla for the proposed ferry terminal. The part of the 

Currituck Sound lying adjacent to the Whalehead Club is known as 

the Whalehead Club Basin (the “Basin”). In order to establish a 

ferry service to the Corolla terminal, the Basin had to be 

dredged. Under applicable federal and state law, however, such 

dredging activity could be legally undertaken only after 

issuance of permits by the Corps and the North Carolina Division 

of Coastal Management (commonly referred to as “CAMA”).3 

 Gaskill was familiar with the permitting processes of the 

Corps and CAMA, and wrote memoranda as early as 2002 to state 

and county officials specifying that the proper permits were 

essential to establishing the Corolla ferry terminal. As the 

land owner, Currituck County was responsible for obtaining such 

permits for the dredging of the Basin, but the county officials 

doubted whether the permits would be issued by the state and 

federal authorities because similar permits had been denied in 

the past. 

 3

 The North Carolina Division of Coastal Management is a 

state agency commonly referred to as “CAMA,” a reference to the 

state’s Coastal Area Management Act, which established the 

agency. 

4 
 In February 2004, Bill Moore, who worked directly for 

Gaskill as Superintendent of Dredge and Field Maintenance for 

the Ferry Division, responded to Gaskill’s question “How are we 

going to do this job?” by advising Gaskill that his people would 

“push a barge in there, build a dock, and push it back out.” 

J.A. 137. In other words, Moore intended to move an NCDOT 

vessel into the shallow waters of the Basin in a forward manner 

in order to excavate the bottom of the waterway to create a 

channel. According to Moore, Gaskill “seemed okay” with this 

suggestion. Id. at 138. Gaskill thereafter told another Ferry 

Division employee, however, that “I didn’t order those guys to 

do that dredging, but when Bill Moore made that statement, I 

knew [Moore] probably or could do something like that, and I 

didn’t stop him, so that makes me partly responsible.” Id. at 

251. 

 As of May 2004, no permit applications for dredging in the 

Basin had been submitted by the County to either the Corps or 

CAMA. Accordingly, no permits had been issued by either agency. 

On May 6 and 7, 2004, Moore nevertheless directed Ferry Division 

employees to utilize the propellers of two NCDOT vessels to 

excavate a channel in the Basin for use by the ferry service. 

The Division employees then used the NCDOT vessels to “prop 

wash” a channel in the Basin that was about four to five feet in 

5 
depth, approximately 730 feet long by 30 feet wide, and included 

a turning basin approximately 110 feet long by 50 feet wide.4 

 Moore drove to Gaskill’s office in Morehead City on May 7, 

2004, after the dredging had been completed, and informed 

Gaskill that he had directed Ferry Division employees to “kick 

that channel out.” J.A. 156. Neither Gaskill nor any other 

NCDOT personnel, however, informed the Corps or CAMA of those 

events. Nevertheless, the prop washing activity was almost 

immediately reported to the federal and state authorities by an 

anonymous third party. As a result, the Corps and CAMA 

initiated a joint federal-state investigation of the apparently 

illegal dredging activity. In responding to this investigation, 

Gaskill made the false statements that were used to secure his 

conviction for the § 1001 offense. These statements are 

explained further below. 

 First of all, the Corps and CAMA made inquiries to the 

Ferry Division concerning the dredging activities in the Basin. 

In formulating the Division’s response to those inquiries, 

Gaskill, as the Division’s Director, was instructed to conduct 

 4

 “Prop washing” is the term used in Count Four of the 

indictment to describe the dredging activity undertaken in the 

Basin on May 6 and 7, 2004. Generally, such dredging, also 

called “kicking” or “pushing,” means “the use of the propellers 

of a vessel to create a backwash which, in turn, dredges and 

displaces material.” J.A. 14. 

6 
an internal review of the dredging activity. Gaskill asked 

Moore and other Division personnel to prepare written statements 

detailing the events that took place in the Basin on May 6 and 

7, 2004. According to Moore, he was directed by Gaskill to “get 

your story straight.” J.A. 222. On June 23, 2004, Moore 

provided a letter to Gaskill, in which Moore falsely said that a 

state vessel had accidently run aground in the Basin, 

unintentionally disturbing the sediment on its bottom. 

 On June 25, 2004, after receiving Moore’s letter, Gaskill 

submitted his proposed response to the NCDOT’s Deputy Secretary 

(the “Response”). On July 2, 2004, that Response was forwarded, 

together with Moore’s letter and other materials, to the Corps. 

The Response falsely characterized the disturbance in the Basin 

as unintentional and as having a limited environmental impact. 

See J.A. 628 (representing to the Corps that “neither Mr. Moore 

or the Ferry Division had any intention of deepening the 

channel, and any disturbance was unintentional”). The Corps, 

upon receiving NCDOT’s submission, which included the Response, 

continued to investigate the prop washing incident, seeking to 

identify and possibly prosecute those responsible. 

 On June 28, 2004, CAMA investigators issued a Notice of 

Violation to the NCDOT, alleging that “[i]t appears NCDOT is 

responsible for the unauthorized excavation of a channel” within 

the Basin. J.A. 402. That same day, in a telephone interview 

7 
with a CAMA investigator, Gaskill again falsely asserted that 

the NCDOT had not intentionally caused an environmental 

disturbance within the Basin. On July 6, 2004, Gaskill 

responded in writing to CAMA’s Notice of Violation, sending it a 

letter — substantially identical to the Response submitted to 

the Corps — again falsely maintaining that the prop washing 

activity in the Basin was unintentional. 

 Eventually, by notice to the Corps of August 23, 2004, the 

NCDOT reversed its position concerning the prop washing 

incident, and accepted full responsibility for the illegal 

dredging activities in the Basin on May 6 and 7, 2004. J.A. 366 

(specifying that “[the NCDOT] has investigated the activities of 

the Ferry Division and has determined that they were responsible 

for the unauthorized disturbance”). Because the Corps does not 

perform restorative environmental work — relying instead on the 

responsible party — the four-month delay in identifying the 

responsible party resulted in a substantial amount of additional 

environmental harm in the Currituck Sound that otherwise could 

have been mitigated or avoided. 

2. 

 Gaskill testified in his own defense at trial, asserting 

that when the NCDOT submitted his Response to the Corps on July 

2, 2004, he was unaware of the actual facts relating to the 

Ferry Division’s prop washing activities in the Basin. He also 

8 
said that he was unaware of those facts when the separate 

exculpatory submission was made to CAMA on July 6, 2004. In 

fact, Gaskill told the jury that he did not learn of the 

intentional nature of those activities until mid-July 2004, 

after his denials had been submitted to the Corps and CAMA. 

Gaskill denied providing any false information concerning the 

incident to the Corps or CAMA, and asserted that he had 

contacted them immediately upon learning of the prop washing 

activity. 

 On cross-examination, however, the prosecution confronted 

Gaskill with evidence contradicting his direct testimony, 

including his admission to a federal investigator on August 26, 

2004, that Moore “came clean” with him on June 25, 2004, 

concerning the intentional prop washing in the Basin. In view 

of these multiple contradictions, and on the basis of the other 

evidence,5 the jury rejected Gaskill’s exculpatory version of the 

 

(Continued) 

5

 At trial, the Government presented extensive evidence 

showing that Gaskill was aware, prior to responding to the Corps 

and CAMA, of the illegal nature of the dredging activities in 

the Basin. Moore testified that he told Gaskill of the illegal 

nature of the dredging on May 7, 2004. Gaskill’s former 

secretary testified that, at a May 11, 2004 meeting, Gaskill 

stated that the Ferry Division had “made water” in Corolla. 

Additionally, Charles Utz, another Division employee, testified 

that sometime before the end of June 2004, Gaskill showed him 

the CAMA Notice of Violation and an aerial photograph of the 

prop washed area. This evidence convinced Utz that the dredging 

could not have been an accident, but Gaskill nevertheless had 

him prepare the July 6, 2004 letter to CAMA, asserting Gaskill’s 

9 
prop washing incident. Gaskill was thus convicted of the § 1001 

offense in Count Four of the indictment.6

B. 

 After Gaskill’s trial and conviction, a presentence report 

(the “PSR”) was prepared, and it recommended a Sentencing 

Guidelines base offense level of 14. See USSG § 2J1.2 (2006). 

The PSR also recommended a two-level enhancement for obstruction 

of justice, predicated on Gaskill’s perjured trial testimony. 

See id. § 3C1.1. As stated in the PSR, the final offense level 

of 16, combined with a criminal history category of I, yielded 

an advisory sentencing range of twenty-one to twenty-seven 

months of imprisonment. 

 In response to the PSR, Gaskill objected to an obstruction 

of justice enhancement. He also filed a “Motion for Variance 

Sentence,” asserting that a sentence below the advisory 

Guidelines range was appropriate. In the motion, Gaskill 

alleged that he had neither sanctioned, participated in, nor 

authorized the dredging; that he had been “betrayed” by his 

 

exculpatory version of the facts. In all, eighteen witnesses 

testified for the Government. Gaskill himself, plus six 

character witnesses, testified for the defense. 

6

 At trial, the court granted judgment of acquittal on two 

related counts against Gaskill, and the jury acquitted him of 

the remaining charge. 

10 
subordinate, Moore; and that his criminal conduct — lying about 

the dredging — was out of character and a singular lapse of 

judgment, i.e., aberrant behavior. In its written sentencing 

memorandum, the Government objected to Gaskill’s variance 

request, asserted that an adjustment for obstruction of justice 

was appropriate, and requested the imposition of a sentence 

within the advisory Guidelines range. 

 On March 20, 2007, the district court conducted the 

sentencing hearing.7 The court first sustained Gaskill’s 

objection to the PSR’s recommendation of a two-level enhancement 

for obstruction of justice, concluding that the prosecution had 

“not satisfied by a preponderance of the evidence that there was 

an obstruction of justice.” J.A. 753.8 The court then 

determined that Gaskill’s proper advisory sentencing range, 

predicated on a base offense level of 14 and a criminal history 

category of I, was fifteen to twenty-one months. 

 The district court then turned to Gaskill’s request for a 

variance sentence, granting a downward variance and sentencing 

him to three years’ probation with six months’ home confinement. 

 7

 The transcript of the Sentencing Hearing is found at J.A. 

734-68. 

8

 On appeal, the Government does not contend that the 

sentencing court erred in rejecting the obstruction of justice 

enhancement. 

11 
The court also ordered Gaskill to perform 150 hours of community 

service and pay a $5000 fine. The Statement of Reasons filed by 

the court with respect to the sentence did not explain the basis 

for the variance sentence, nor did it select or emphasize any of 

the 18 U.S.C. § 3553(a) factors as justifying such a variance. 

Instead, the Statement of Reasons provided that “[t]he 

defendant’s motion for variance is granted by the court.” J.A. 

798. 

 The Government has timely noted this appeal, challenging 

the sentence and seeking to have it vacated. We possess 

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.9 

II. 

 We review a sentence imposed by a district court for 

reasonableness, applying an abuse of discretion standard. See

Gall v. United States, 128 S. Ct. 586, 597-98 (2007); United 

States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007).10 

 9

 Upon motion of the Government, the execution of Gaskill’s 

sentence has been stayed pending resolution of this appeal. 

10 Gaskill contends that his sentence can only be vacated if 

it constitutes plain error, because the Government waived any 

objection by failing to object following the imposition of the 

variance sentence. This contention is without merit. As we 

have previously recognized, the Government preserves its 

objection to a variance sentence by “arguing for a sentence 

within the Guidelines range throughout the sentencing hearing.” 

United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006); see 

(Continued) 

12 
Generally, in order to determine whether a sentencing court has 

abused its discretion, we apply a two-step analysis. Pauley, 

511 F.3d at 473. First, we examine the sentence for 

“significant procedural errors,” and, second, we evaluate the 

substance of the sentence. Id. In assessing procedural 

reasonableness, we examine whether the sentencing court properly 

calculated the Guidelines range, whether it treated the 

Guidelines as mandatory, whether it considered the factors set 

forth in 18 U.S.C. § 3553(a), and whether it selected a sentence 

based on “clearly erroneous facts” or failed to sufficiently 

explain the sentence. See Gall, 128 S. Ct. at 597; Pauley, 511 

F.3d at 473. 

 If there are no procedural errors, we proceed to consider 

the substantive reasonableness of a sentence, “taking into 

account the ‘totality of the circumstances including the extent 

of any variance from the Guidelines range.’” Pauley, 511 F.3d 

at 473 (quoting Gall, 128 S. Ct. at 597). In evaluating a 

sentence that falls within a properly calculated Guidelines 

range, we may — but are not obliged to — apply a presumption of 

reasonableness. Gall, 128 S. Ct. at 597. Where, as here, the 

 

also United States v. Clark, 434 F.3d 684, 686 n.1 (4th Cir. 

2006). The Government, in its sentencing memorandum and at the 

sentencing hearing, advocated for a sentence within the advisory 

Guidelines range. 

13 
sentence falls outside the advisory Guidelines range, we “may 

consider the extent of the deviation, but must give due 

deference to the district court’s decision that the § 3553(a) 

factors, on a whole, justify the extent of the variance.” Id. 

III. 

 The sentence imposed on Gaskill is flawed in that the 

sentencing court procedurally erred by failing to fully consider 

the 18 U.S.C. § 3553(a) factors and adequately explain the 

sentence imposed, as required by § 3553(c). We explain further 

below. 

A. 

 The Supreme Court’s decision in Gall v. United States

identified two potential procedural problems with respect to a 

sentencing court’s assessment of the relevant sentencing 

factors. See 128 S. Ct. 468, 596-97 (2007). First, “after 

giving both parties an opportunity to argue for whatever 

sentence they deem appropriate,” a sentencing court should 

“consider all of the § 3553 factors to determine whether they 

support the sentence requested by a party.” Id. at 596. 

Significantly, § 3553(a) mandates that a sentencing court 

consider the statute’s enumerated factors. See § 3553(a) (“The 

court, in determining the particular sentence to be imposed, 

shall consider [the § 3553(a) factors].”); see also United 

14 
States v. Battle, 499 F.3d 315, 323 (4th Cir. 2007) (“A district 

court must . . . consider the § 3553(a) factors in every case, 

regardless of whether the sentence imposed is within the 

Guidelines range.”).11 Nevertheless, a sentencing court need not 

accord equal weight to each of the § 3553(a) factors, and it is 

“quite reasonable for the sentencing court to have attached 

great weight to a single factor.” United States v. Pauley, 511 

F.3d 468, 476 (4th Cir. 2007) (internal quotation marks 

omitted). 

 Second, after determining the appropriate sentence, a 

sentencing court “must adequately explain the chosen sentence to 

 11 Pursuant to § 3553(a) of Title 18, a sentencing court, in 

determining the sentence to impose, shall consider: 

(1) the nature and circumstances of the offense and 

the history and characteristics of the defendant; 

(2) the need for the sentence to (A) reflect the 

seriousness of the offense, promote respect for the 

law, and provide just punishment for the offense, (B) 

afford adequate deterrence to criminal conduct, (C) 

protect the public from further crimes, and (D) 

provide the defendant with needed medical care or 

other correctional treatment; 

(3) the kinds of sentences available; 

(4) the kinds of sentence and the sentencing range 

established in the applicable guidelines; 

(5) any pertinent policy statements; and 

(6) the need to avoid unwarranted sentence disparities 

among defendants with similar records who have been 

found guilty of similar conduct. 

15 
allow for meaningful appellate review and to promote the 

perception of fair sentencing.” Gall, 128 S.Ct. at 597; see 

also 18 U.S.C. § 3553(c) (directing sentencing court to “state 

in open court the reasons for its imposition of the particular 

sentence”). As we have explained, however, a sentencing court 

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

subsection,” United States v. Johnson, 445 F.3d 339, 345 (4th 

Cir. 2006), and we have ourselves matched a sentencing court’s 

reasons — when not couched in the precise language of § 3553(a) 

— to an appropriate § 3553(a) factor, United States v. Moulden, 

478 F.3d 652, 658 (4th Cir. 2007). Significantly, a sentencing 

court’s “explanation of a variance sentence must be tied to the 

factors set forth in § 3553(a).” United States v. HernandezVillanueva, 473 F.3d 118, 122-23 (4th Cir. 2007). Moreover, 

notwithstanding our deferential standard for review, it is well 

established that a sentence well outside the advisory Guidelines 

range “should be supported by a more significant justification 

than a minor one.” Gall, 128 S. Ct. at 597. 

B. 

 At Gaskill’s sentencing, the district court did not 

explicitly state that it had considered any of the § 3553(a) 

factors. Significantly, the court did not address the 

Government’s § 3553(a) contentions on the nature of the offense, 

the characteristics of the defendant, or the importance of 

16 
affording adequate deterrence to criminal conduct. 

Additionally, the court failed to assess Gaskill’s contentions —

presented in his variance motion — that he had neither 

sanctioned, participated in, nor authorized the dredging; that 

he had been “betrayed” by Moore; and that his criminal conduct 

constituted aberrant behavior. 

 The sentencing court observed that, although both Gaskill 

and the Government had made arguments concerning the appropriate 

sentence, other factors would also be considered. See J.A. 764 

(“I’m going to give both defendants a sentence in a minute, but 

as the referee, I think it would be unjust for the sentence to 

be grounded only in what the two sides say, because I think that 

grossly distorts what’s going on in this case.”). In order to 

determine whether the court considered the § 3553(a) factors, we 

assess the other factors discussed by the court, placing them 

into two broad categories: the “dredging comments” and the 

“public service comment.” 

1. 

 In its dredging comments, the court stated that it was 

“committed to restoring and preserving . . . the environment” in 

coastal North Carolina, but that “the whole mosaic of the 

environment” should be considered. J.A. 764. The court noted 

that, in assessing the impact to this “delicate and precious 

resource,” consideration should be given to the roles of “the 

17 
national government, the United States, and the state of North 

Carolina.” Id. at 763. The court highlighted the fact that 

Gaskill did not simply “on a Saturday afternoon, decide[] to go 

out, [and] on a lark do something that impacted the 

environment.” Id. Rather, “[t]his was the state of North 

Carolina, through all its agencies and resources, doing this as 

official policy.” Id. Further, the court observed that the 

ferry services provided by North Carolina are “critical, 

essential, life-saving and life-preserving and life-generating 

lines between coastal areas, islands, and the people who live 

there.” Id.12 

 12 As an example of the existing situation in coastal North 

Carolina, the district court discussed at some length the 

relationship of the state and federal governments and their 

response after Hurricane Isabelle: 

In Hurricane Isabelle, an inlet was punched through on 

Hatteras Island. Did they call it an inlet? No. Why 

didn’t they call it an inlet? They didn’t call it an 

inlet because you can’t close an inlet, but you can 

close a breach. So the government, state and federal, 

went hog wild, hard as they could, long as they could, 

dredging and pumping. Was that an environmentally 

positive or sound event? I don’t know. . . . Was 

there a political and policy commitment to keep a land 

road to Hatteras? You bet there was. Did that mean 

that that inlet was going to be closed? If in any way 

it was physically possible, that inlet was going to be 

closed, and there was no limit to what was going to 

happen until that happened. 

J.A. at 764-65. 

18 
 Thus, although the sentencing court recognized that 

environmental damage to the Basin was “unfortunate and 

reprehensible,” it tempered that observation by stating that 

such damage “needs to be seen in the context of everything 

that’s going on in coastal North Carolina.” J.A. 765. The 

court then stated that “[t]he state necessarily and properly 

remediated the damage. Was there a long-term permanent effect? 

Yes, I think so, based on what I’ve read. Is that unfortunate? 

Yes. Is there anything more that can be done? Probably nature 

needs to take its course.” Id. at 765-66. 

 The dredging comments thus only address the nature and 

circumstances of the prop washing incident in the Basin. They 

do not reach or address the nature and circumstances of 

Gaskill’s § 1001 false statements offense, and cannot be 

characterized as addressing any specific § 3553(a) factor. As a 

result, the dredging comments are not linked to the history and 

characteristics of Gaskill personally, to the nature and 

circumstances of his § 1001 offense, or to any other factor 

specified in § 3553(a). 

2. 

 Turning to the public service comment, the sentencing court 

recognized that Gaskill had served in a supervisory capacity for 

the state and had a long history of public service. The court 

observed that Gaskill had “provided extensive public service in 

19 
his job as director of the ferry service” and that he had served 

in a management capacity as a state employee with significant 

responsibilities. J.A. 766. This comment appears to bear on 

the factor identified in § 3553(a)(1), “the nature and 

circumstances of the offense and the history and characteristics 

of the defendant.” See Hernandez-Villanueva, 473 F.3d at 122 

(explaining that sentencing court “‘may consider, without 

limitation, any information concerning the background, character 

and conduct of the defendant, unless otherwise prohibited by 

law’” (quoting USSG § 1B1.4)). Accordingly, the public service 

comment indicates that the court partially considered one aspect 

— the history and characteristics of the defendant — of one 

factor under § 3553(a). 

C. 

 In the absence of some indication that the sentencing court 

considered all the § 3553(a) factors, we are unable to conclude 

that it complied with its § 3553 mandate. See United States v. 

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (explaining 

that “district court’s explanation should provide some 

indication . . . that the court considered the § 3553(a) 

factors”). First, the court did not explicitly state that it 

had considered the § 3553(a) factors or address the parties’ 

arguments addressing such factors. Second, in these 

circumstances, we accept the proposition that the sentencing 

20 
court primarily considered the factors it placed on the record 

at the sentencing hearing — i.e., the dredging comments and the 

public service comment — in granting a downward variance. The 

court’s implicit consideration of only a part of a single 

§ 3553(a) factor, however, is insufficient to support the 

implication that it considered each of the § 3553(a) factors.13 

Finally, the Statement of Reasons filed in connection with the 

sentencing did not explain the court’s reasoning. In fact, the 

court did not identify any § 3553(a) factor in its Statement of 

Reasons as being supportive of a variance sentence. Because a 

sentencing court should provide a more substantial justification 

for a probationary sentence when the Advisory Guidelines call 

for an active sentence of imprisonment, such as in this case, we 

are unable to conclude that the award of a downward variance was 

procedurally sound.14 

 13 Gaskill contends that the sentencing court incorporated 

the arguments that were made in his motion for a variance when 

the court stated that it was “going to allow the defendant’s 

motion for a variant sentence on Mr. Gaskill.” See J.A. 766. 

The record reveals that, although the court granted Gaskill’s 

motion, it did so without referring to Gaskill’s asserted 

reasons in any way. We are, in these circumstances, unable to 

impute the contentions of the motion to the court’s reasoning. 

14 On appeal, the Government has characterized the 

sentencing court’s reliance on factors not cognizable under 

§ 3553(a) as constituting procedural error. Br. of Appellant 

27-30. So long as a sentencing court satisfies the procedural 

requirements delineated by the Supreme Court, however, a 

challenge to its reliance on improper factors is more 

(Continued) 

21 
22 

IV. 

 Pursuant to the foregoing, we vacate and remand for 

resentencing. 

VACATED AND REMANDED

 

appropriately considered under a substantive reasonableness 

analysis. See United States v. Moreland, 437 F.3d 424, 434 (4th 

Cir. 2006) (instructing that “[a] sentence may be substantively 

unreasonable if the court relies on an improper factor”); see

also United States v. Green, 436 F.3d 449, 456-57 (4th Cir. 

2006) (recognizing that a “district court’s reasons for not 

applying the properly calculated Guideline range must be based 

on the factors listed in § 3553(a)”). Having concluded that the 

court erred procedurally, we need not reach or assess the 

substantive reasonableness of the sentence.