UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 18-4445

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEWIS ALEXANDER HINES, a/k/a Lewis L.O. Hines, a/k/a Lorenzo Hines, 

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Wilmington. Terrence W. Boyle, Chief District Judge. (7:17-cr-00075-BO-1)

Argued: September 20, 2019 Decided: December 18, 2019

Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. 

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, OFFICE 

OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON 

BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate 

Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, 

for Appellant. Robert J. Higdon, Jr., United States Attorney, Kristine L. Fritz, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Defendant Lewis Alexander Hines pleaded guilty to possession with intent to 

distribute 28 grams or more of a mixture or substance containing a detectable amount of 

cocaine base. 21 U.S.C. § 841(a)(1), (b)(1)(B) (2012). Although the Sentencing 

Guidelines recommended a 60-month term of imprisonment, the district court upwardly 

departed and sentenced Defendant to 120 months. On appeal, Defendant argues that the 

district court committed a procedural error by sentencing him to double the Guidelines term 

of imprisonment without addressing his nonfrivolous arguments in support of a Guidelines 

sentence. Compelled by our holding in United States v. Blue, 877 F.3d 513, 518 (4th Cir. 

2017), we must vacate Defendant’s sentence and remand for resentencing.

We review a criminal sentence, “whether inside, just outside, or significantly outside 

the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. King, 673 

F.3d 274, 283 (4th Cir. 2012). We consider both the procedural and substantive 

reasonableness of the sentence. Gall, 552 U.S. at 51. District courts commit procedural 

error where, for example, they improperly calculate the defendant’s Guidelines range, fail 

to give the parties an opportunity to argue for an appropriate sentence, do not consider the 

18 U.S.C. § 3553(a) sentencing factors, select a sentence based on facts that were clearly 

erroneous, or do not sufficiently explain the selected sentence. Id. at 49–51. Only after 

determining that the sentence is procedurally reasonable do we consider whether it is 

substantively reasonable, “tak[ing] into account the totality of the circumstances.” Id. at

51; see United States v. Carter, 564 F.3d 325, 330 n.4 (4th Cir. 2009) (“Having found the 
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sentence procedurally unreasonable . . . , we cannot review the sentence for substantive 

reasonableness.”).

“Under the law of this circuit a district court must address or consider all nonfrivolous reasons presented for imposing a different sentence and explain why he has 

rejected those arguments.” United States v. Ross, 912 F.3d 740, 744 (4th Cir.), cert. denied, 

140 S. Ct. 206 (2019). “The adequacy of the sentencing court’s explanation depends on 

the complexity of each case. There is no mechanical approach to our sentencing review.”

Blue, 877 F.3d at 518. Rather, “[t]he appropriateness of brevity or length, conciseness or 

detail, when to write, what to say, depends upon [the] circumstances.” Rita v. United 

States, 551 U.S. 338, 356 (2007). As the Supreme Court has recently noted, “[t]he law 

leaves much, in this respect, to the judge’s own professional judgment.” Chavez-Meza v. 

United States, 138 S. Ct. 1959, 1964 (2018) (quoting Rita, 551 U.S. at 356). 

Here, it is important that the district court upwardly varied and imposed a sentence 

(120 months) twice the top of the Guidelines range (60 months). It is “uncontroversial that 

a major departure” from the Guidelines “should be supported by a more significant 

justification than a minor one.” Gall, 552 U.S. at 50; see United States v. Gibbs, 897 F.3d 

199, 206 (4th Cir. 2018) (affirming a Guidelines-recommended sentence for revocation of 

supervised release but noting that “[i]f the court had determined to depart from the 

Guidelines, perhaps a more fulsome explanation might have been required”); United States 

v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). 

Additionally, while “it is sometimes possible to discern a sentencing court’s 

rationale from the context surrounding its decision, an appellate court nonetheless ‘may 
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not guess at the district court’s rationale, searching the record for statements by the 

Government or defense counsel or for any other clues that might explain a sentence.’”

Ross, 912 F.3d at 745 (citations omitted) (quoting Carter, 564 F.3d at 329–30). A

“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, 551 U.S. at 356; see Lynn, 592 F.3d at 576 (recognizing 

that “an individualized explanation must accompany every sentence”). In cases where 

“‘the district court could have made precisely the same statements in support of a different 

sentence,’ we have found the explanation to be inadequate and have remanded for 

resentencing.” Blue, 877 F.3d at 519 (quoting Lynn, 592 F.3d at 585).

Defendant’s counsel made at least seven arguments in support of a withinGuidelines sentence, stating that Defendant (1) had a limited criminal history, which started 

when he was only 17 years old; (2) left his gang and, because of that decision, was shot 

three times; (3) does not carry a gun and did not use violence in this case; (4) began a GED

program, which he was unable to complete after being shot; (5) repeatedly applied for 

credentials to work at a port; (6) demonstrated maturity and a desire to be responsible for 

his family by fixing up his uncle’s old rental home for occupation by Defendant and his

disabled mother, so that Defendant could care for her; and (7) accepted responsibility in 

this case and cooperated as a key witness in the homicide prosecution of a member of his 

former gang, for which he received threats.

The district court did not address most of Defendant’s mitigating arguments. Rather, 

the court referred to Defendant’s prior history and concluded that he had “demonstrated 
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repeatedly that he is a danger to the community and a recidivist and can only be dealt with 

by being removed from society and placed in a prison.” J.A. 71. Citing § 3553(a)(2), the 

court noted that selling drugs is a “serious offense,” that Defendant “need[ed] to be 

deterred,” that “the public needs to be protected,” and that Defendant was “young enough 

so that he [could] take advantage of educational and vocational training” during his 

imprisonment. J.A. 72–73. On appeal, Defendant contends that the district court needed 

to address his arguments explicitly and explain why it rejected them. The Government 

responds that the court implicitly rejected those arguments by labeling Defendant a 

recidivist.

Blue mandates our decision in favor of Defendant. In Blue, defendant-appellant 

Benjamin Blue raised eight arguments to support a below-Guidelines sentence:

[1] [H]e was influenced by his older brothers . . . ; [2] he committed the instant offense 

to support his opiate addiction; [3] he had successfully found employment and was a 

hard worker; [4] he was a good father . . . ; [5] his co-defendant received a 

[comparatively lenient] sentence . . . ; [6] the career offender Guidelines range was 

overly harsh and failed to deter offenders; [7] he accepted responsibility for his 

conduct; and [8] he attempted to provide substantial assistance in the prosecution of 

others, but his attempts were frustrated by factors outside of his control.

Blue, 877 F.3d at 517. The district court sentenced Blue within the Guidelines, referring to

the first two of his mitigating arguments but failing to acknowledge or address the other six. 

Id. at 517, 519. This Court vacated the sentence. Recognizing that Blue’s arguments were 

“nonfrivolous,” we held that “the district court’s failure to address [them], as well as its 

failure to explain whether and why it rejected them, render[ed] Blue’s sentence procedurally 

unreasonable.” Id. at 519.

Here, Defendant raised at least seven arguments in support of a within-Guidelines 
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sentence. The court rejected some of them. For example, despite Defendant’s arguments 

that his crime was nonviolent and that his criminal record was limited, the court concluded 

that selling drugs is a “serious offense” from which “the public needs to be protected.” J.A. 

72–73. But the court did not discuss Defendant’s other arguments, which are nonfrivolous 

under Blue. See 877 F.3d at 519 (noting that “attempt[s],” even if unsuccessful, “to assist 

in the prosecution of others” and “family relationships ha[ving] developed since [the 

defendant’s] prior . . . convictions” are nonfrivolous arguments for sentencing mitigation). 

“[T]he district court’s failure to address [Defendant]’s arguments, as well as its failure to 

explain whether and why it rejected them, render [Defendant]’s sentence procedurally 

unreasonable.” Id.

Furthermore, the district court in Blue stated that it had “[c]onsidered arguments on 

behalf of [the defendant] with respect to history and characteristics.” Id. at 517. Many of 

Blue’s arguments could have been interpreted as falling under the category of “history and 

characteristics,” yet this Court “decline[d] to speculate” as to the district court’s reasoning. 

Id. at 521. In the same way, the Government argues here that the district court implicitly 

rejected Defendant’s arguments by stating that he is a recidivist. But that is insufficient. 

“The district court had an obligation to specifically address [Defendant’s] non-frivolous 

arguments.” Ross, 912 F.3d at 745 (emphasis added). It “cannot meet its responsibility 

through broadly referring to the § 3553(a) factors in lieu of addressing the parties’ nonfrivolous arguments.” Id.; see also United States v. Slappy, 872 F.3d 202, 208–10 (4th Cir. 

2017). Rather, the district court must make its reasoning explicit “to allow for meaningful 

appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50.
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Finally, the district court’s error is not harmless. “For a procedural sentencing error 

to be harmless, the government must prove that the error did not have a substantial and 

injurious effect or influence on the result.” Ross, 912 F.3d at 745 (citing Lynn, 592 F.3d at 

585). Here, the district court’s primary stated reason for sentencing Defendant to an aboveGuidelines sentence was its belief that he would reoffend. However, most of Defendant’s

arguments for a Guidelines sentence related to concrete steps he had taken to remove 

himself from a life of crime. It is conceivable that the district court would have sentenced 

Defendant differently had it considered his nonfrivolous mitigation arguments. E.g., 

United States v. Blue, 755 F. App’x 325, 325 (4th Cir. 2019) (per curiam) (noting that after 

this Court vacated Blue’s 272-month sentence and remanded the case for resentencing, the 

district court imposed a reduced sentence of 228 months in prison). In other words, because 

Defendant’s arguments are nonfrivolous, “we cannot say with any ‘fair assurance’ that the 

district court’s explicit consideration of those arguments would not have affected the 

sentence imposed.” Lynn, 592 F.3d at 585 (citation omitted) (quoting Kotteakos v. United 

States, 328 U.S. 750, 765 (1946)).

We therefore vacate Defendant’s sentence and remand for resentencing. We of 

course express no view as to the appropriate length of a sentence in Hines’s case, leaving 

that to the district court in the first instance after the Defendant’s contentions have been 

more thoroughly addressed.

VACATED AND REMANDED