UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4991

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHNNY HYMAN PALMER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Elizabeth City. Terrence W. Boyle,

District Judge. (CR-04-13)

Submitted: February 7, 2007 Decided: March 9, 2007

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Vidalia Patterson, Research and

Writing Attorney, Raleigh, North Carolina, for Appellant. George

E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.

May-Parker, Assistant United States Attorneys, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

Palmer was sentenced after United States v. Booker, 543 U.S.

220 (2005)

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PER CURIAM:

Johnny Hyman Palmer pled guilty to possession of a

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

(2000). Palmer’s adjusted total offense level of 19 and his

criminal history category of IV yielded a guideline range of 46 to

57 months imprisonment. At sentencing, Palmer’s attorney argued

for a sentence below the advisory guidelines range1

 based on:

(1) the age of Palmer’s prior felony convictions (both of which

occurred when he was 18-19 years old); (2) Palmer’s poor health

(diabetes and kidney failure); and (3) his interest in maintaining

a relationship with his three children and the mother of his two

youngest children. The district court sentenced Palmer to 46

months imprisonment--the bottom of the guidelines range--without

any comment on his arguments for a below-guidelines sentence or any

mention of, or reference to, the factors enumerated in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006). Palmer’s only argument on

appeal is that the district court failed to adequately articulate

its reasons for his sentence. We agree. 

This court reviews a district court’s sentence for

reasonableness. United States v. Hughes, 401 F.3d 540, 546-47 (4th

Cir. 2005). “Consistent with the remedial scheme set forth in

[United States v.] Booker, [543 U.S. 220 (2005),] a district court
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shall first calculate (after making the appropriate findings of

fact) the range prescribed by the guidelines.” Id. at 546. Next,

the district court must consider this range in conjunction with

other relevant factors under the guidelines and § 3553(a) and

impose a sentence. Hughes, 401 F.3d at 546. The sentence must be

“within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47 (citations omitted). “[A] sentence within the proper

advisory Guidelines range is presumptively reasonable.” United

States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations

omitted). “[A] defendant can only rebut the presumption by

demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.” United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir.) (internal quotation marks and citation

omitted), petition for cert. filed, ___U.S.L.W.___ (U.S. July 21,

2006) (No. 06-5439).

A post-Booker sentence may be unreasonable for procedural

or substantive reasons. “A sentence may be procedurally

unreasonable, for example, if the district court provides an

inadequate statement of reasons or fails to make a necessary

factual finding.” United States v. Moreland, 437 F.3d 424, 434

(4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054

(2006). While a district court must consider the various factors

listed in § 3553(a) and explain its sentence, it need not

“robotically tick through § 3553(a)’s every subsection” or
2

We note that the district court sentenced Palmer prior to our

decisions in Moreland, Johnson, and Montes-Pineda, and thus did not

have the benefit of the guidance provided by those cases. We

further note that the district court is free on remand to impose

the same sentence or a different one; nothing in this opinion

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“explicitly discuss every § 3553(a) factor on the record.”

Johnson, 445 F.3d at 345. “This is particularly the case when the

district court imposes a sentence within the applicable Guidelines

range.” Id. (citation omitted).

However, “a district court’s explanation should provide

some indication (1) that the court considered the § 3553(a) factors

with respect to the particular defendant; and (2) that it has also

considered the potentially meritorious arguments raised by both

parties about sentencing.” Montes-Pineda, 445 F.3d at 380

(citations omitted). “[I]n determining whether there has been an

adequate explanation, [the court does] not evaluate a court’s

sentencing statements in a vacuum.” Id. at 381. Rather, “[t]he

context surrounding a district court’s explanation may imbue it

with enough content for [the court] to evaluate both whether the

court considered the § 3553(a) factors and whether it did so

properly.” Id. 

On the record before us, we are unable to discern whether

the district court considered the § 3553(a) factors or whether it

did so properly. Accordingly, we vacate Palmer’s sentence and

remand for resentencing in order to allow the district court to

articulate its reasons in imposing sentence.2 We dispense with
should be read to suggest that we have formed any view regarding

the appropriate outcome of Palmer’s resentencing. 

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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