UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4900

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CARLOS ADRIAN OLEA AVILA, a/k/a Eric Santiago Roman, a/k/a 

Carlos Olea Avila,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:14-cr-00136-NCT-1)

Submitted: May 27, 2015 Decided: December 23, 2015

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Leslie Carter Rawls, Charlotte, North Carolina, for Appellant. 

Ripley Rand, United States Attorney, Greensboro, North Carolina, 

Robert A.J. Lang, Assistant United States Attorney, Alena K. 

Baker, Third Year Law Student, Winston-Salem, North Carolina, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Carlos Adrian Olea Avila appeals the 70-month sentence the 

district court imposed following his guilty plea to the charge 

of illegal reentry of an aggravated felon, in violation of 

8 U.S.C. §§ 1326 (a) and (b)(2). On appeal, Avila argues that 

the district court imposed a procedurally unreasonable sentence 

by failing to explain his sentence and by failing to conduct an 

individualized assessment of the facts to support his sentence. 

Because the district court failed to state the basis for the 

sentence imposed, we are constrained to conclude that we can 

neither uphold the sentence as procedurally reasonable nor 

determine its substantive reasonableness. Accordingly, we 

vacate the judgment of the district court and remand for 

resentencing.

I.

A.

Avila, a native of Mexico, entered the United States on 

June 15, 2001. In 2003 and 2004, he was convicted of two 

felonies in California Superior Court. The first, in December 

2003, was for possession of methamphetamine. The second, in 

September 2004, was for vehicle theft. Following the second 

conviction, on September 24, 2004, Avila was deported to Mexico. 
3

Avila, however, returned to the United States. In 2009, 

after he was discovered, he was convicted of illegal reentry by 

an aggravated felon and sentenced to 36 months’ imprisonment. 

After completing his sentence for that crime, Avila was deported 

to Mexico again.

Less than three years later, Avila was discovered in the 

United States again. On April 7, 2014, Avila was arrested by 

the Charlotte ICE/ERO Fugitive Operations Team. A federal grand 

jury subsequently indicted Avila for illegal reentry by an 

aggravated felon, in violation of 8 U.S.C. §§ 1326 (a) and 

(b)(2). Avila pleaded guilty under a written plea agreement.

B.

In preparing the presentence report (“PSR”), the probation 

officer calculated a base-offense level of 8 under the 

U.S.S.G. § 2L1.2(a) (2013), with a 16-level increase because 

Avila had been previously deported following his 2003 felony 

drug trafficking conviction. Applying a 3-level reduction for 

acceptance of responsibility, the probation officer found 

Avila’s total offense level to be 21. With a criminal history 

category of V, he faced a Guidelines range of 70 to 87 months. 

The probation officer recommended a sentence at the low end of 

the advisory Guidelines range. Neither party objected to the 

PSR.
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The district court adopted the PSR and calculated Avila’s 

Guidelines range to be 70 to 87 months. The government 

requested a within-Guidelines sentence. Avila requested a 

downward variance, arguing that, by both imposing the 

enhancement for illegal reentry and finding a criminal history 

category of V, the PSR double-counted his prior felony 

conviction.

To Avila’s argument for a downward variance, the Government 

responded that the three criminal history points were added for 

the prior conviction and the 16-level enhancement was given 

because Avila once again reentered the country illegally. 

Therefore, the Government argued, there was no double-counting. 

The Government stated, however, that it had no objection to a 

70-month sentence.

The district court agreed with the Government on the 

double-counting argument and concluded that a downward variance 

was unwarranted. Although the district court also concluded 

that a sentence at the low end of the Guidelines range was 

appropriate, it neither explained its rationale for adopting a 

within-Guidelines sentence nor explicitly mentioned the 

18 U.S.C. § 3553(a) factors. The court then sentenced Avila to 

70 months’ imprisonment. This appeal followed.
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II.

In his appeal, Avila contends that his sentence is 

procedurally unreasonable because (1) the district court failed 

to sufficiently explain its sentencing decision, including the 

application of the § 3553(a) factors, and (2) the district court 

failed to conduct an individualized assessment in its sentencing 

decision.

In reviewing any sentence for reasonableness, “we apply a 

‘deferential abuse-of-discretion standard.’” United States v. 

Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall v. 

United States, 552 U.S. 38, 41 (2007)). Our analysis follows a 

two-step approach. We first must “ensure that the district 

court committed no significant procedural error.” Gall, 552 

U.S. at 51. “If, and only if, we find the sentence procedurally 

reasonable,” we then proceed to “consider the substantive 

reasonableness of the sentence imposed.” Carter, 564 F.3d 

at 328 (quoting Gall, 552 U.S. at 51).

A district court commits procedural error by 

failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as 

mandatory, failing to consider the [18 U.S.C] 

§ 3553(a) factors, selecting a sentence based on 

clearly erroneous facts, or failing to adequately 

explain the chosen sentence--including an explanation 

for any deviation from the Guidelines range. 
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Gall, 552 U.S. at 51. “District courts are obligated to explain 

their sentences, whether those sentences are within or beyond 

the Guidelines range, although they should especially explain 

sentences outside this range.” United States v. Montes-Pineda, 

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

omitted). In particular, 18 U.S.C. § 3553(c) requires a 

district court to “state in open court” the specific reasons 

supporting the sentence given. In doing so, “[t]he sentencing 

judge should set forth enough to satisfy the appellate court 

that he has considered the parties’ arguments and has a reasoned 

basis for exercising his own legal decisionmaking authority.” 

Rita v. United States, 551 U.S. 338, 356 (2007). This not only 

“allow[s] for meaningful appellate review”; it also “promote[s] 

the perception of fair sentencing.” Gall, 552 U.S. at 50. 

Even if a district court imposes a within-Guidelines 

sentence, “it must place on the record an ‘individualized 

assessment’ based on the particular facts of the case before 

it.” Carter, 564 F.3d at 330 (quoting Gall, 552 U.S. at 50) 

(footnote omitted). “This individualized assessment need not be 

elaborate or lengthy, but it must provide a rationale tailored 

to the particular case at hand and adequate to permit 

‘meaningful appellate review.’” Id. (quoting Gall, 552 U.S. 

at 50).
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In Carter, we concluded that the district court failed to 

“justify Carter's sentence with an individualized rationale.” 

Id. at 328-29 (emphasis omitted). Despite the fact that the 

district court had “offered a variety of statements” about the 

parties' arguments, had explained that it was “looking at the 

four purposes in Section 3553(a)(2),” and had even summarized 

those purposes, we concluded that the district court failed to 

sufficiently “explain how those purposes applied to Carter.” 

Id. at 329. Thus, we found Carter’s sentence unreasonable 

because the “district court's asserted ‘reasons’ could apply to 

any sentence, regardless of the offense, the defendant's 

personal background, or the defendant's criminal history.” Id.

(emphasis omitted).

Here, the totality of the district court's statement to 

Avila with respect to the sentence was as follows:

I am in agreement with Ms. Hairston’s perspective with 

regard to how the counted criminal history points, as 

well as the reason for the aggravated felony existing, 

and will not vary downward, Mr. McCoppin, for that 

reason. I am in agreement as well with the 

recommendation of the guidelines for a sentence at the 

low end of that advisory range, which is 70 months. 

Everyone does have a right to change their life. What 

happens here regardless of what it is, has nothing to 

do with the person’s decision and right to change 

whatever it is they do. You had the opportunity to 

change any decision you would make after you were 

convicted in Federal District Court in Arizona about 

returning to the United States. 
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You know, I am blessed every day, we all are in this 

courtroom, to have the right to be in the United 

States, either by birth or through naturalization. 

Often we don’t understand just how important that is. 

We often take that for granted and don’t appreciate it 

properly, but that doesn’t mean that I can change the 

law or bend the law with regard for what it is for 

people returning as you have, now more than once when 

you’re not lawfully entitled to, without getting the 

appropriate permission from immigration officials. 

J.A. 60-61. The district court's commentary certainly manifests 

its concern regarding the offense and its agreement with the 

recommended Guidelines sentence. It does not, however, include 

individualized reasons for adopting a within-Guidelines sentence 

or an explanation of the sentence actually imposed.

The omission is compounded by the lack of an explanation of 

how the § 3553(a) factors applied to the facts of Avila's case. 

Although it is true that a district court need not “robotically 

tick through § 3553(a)’s every subsection,” United States v. 

Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it must elaborate 

enough on its application of the sentencing factors so as “to 

allow an appellate court to effectively review the 

reasonableness of the sentence,” Montes-Pineda, 445 F.3d at 380 

(citation omitted). Here, the district court did not offer any 

reasons to explain how the purposes of the § 3553(a) factors 

applied to Avila. Furthermore, the record is so bare that we 

cannot decipher from it whether the district court considered 
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the § 3553(a) factors at all, let alone perform any meaningful 

appellate review.

In sum, we cannot uphold Avila’s sentence as procedurally 

reasonable because the district court did not adequately explain 

the basis for the sentence imposed. Accordingly, we vacate the 

judgment of the district court and remand for resentencing. 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.

III.

For the foregoing reasons, we vacate the judgment of the 

district court and remand for resentencing. 

VACATED AND REMANDED