UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4533

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RONNIE ALVIN HOWARD,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers,

Chief District Judge. (3:15-cr-00053-1)

Submitted: January 29, 2016 Decided: February 10, 2016

Before MOTZ, AGEE, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Christian M. Capece, Federal Public Defender, Lex A. Coleman, 

Assistant Federal Public Defender, Jonathan D. Byrne, Research & 

Writing Specialist, Charleston, West Virginia, for Appellant. 

R. Booth Goodwin II, United States Attorney, Jennifer Rada 

Herrald, Assistant United States Attorney, Charleston, West 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Ronnie Alvin Howard pled guilty to failing to register as a 

sex offender, in violation of 18 U.S.C. § 2250 (2012). The 

district court sentenced him to 21 months’ imprisonment to be 

followed by 10 years’ supervised release. Howard appeals this 

sentence, contending that the district court erred by upwardly 

departing from the applicable Sentencing Guidelines range for 

his term of supervised release without providing him with the 

requisite notice.1 We agree, and therefore vacate in part 

Howard’s sentence.

We review a sentence for procedural and substantive 

reasonableness, applying “a deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In 

determining procedural reasonableness, we consider whether the 

district court properly calculated the applicable advisory 

Guidelines range, gave the parties an opportunity to argue for 

an appropriate sentence, considered the 18 U.S.C. § 3553(a) 

(2012) factors, and sufficiently explained the selected 

sentence. Id. at 49-51.

“[I]f a party repeats on appeal a claim of procedural 

sentencing error . . . which it has made before the district 

 1 Howard does not challenge his within-Guidelines sentence 

of 21 months’ imprisonment.
3

court, we review for abuse of discretion. If we find such 

abuse, we reverse unless we conclude that the error was 

harmless.” United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 

2010). Offering “§ 3553 arguments in the district court for a 

different sentence than the one he received” is sufficient to 

“preserve[] [the defendant’s] claim of procedural sentencing 

error on appeal.” Id. at 581.

Howard contends the district court’s sentence of 10 years’ 

supervised release was procedurally unreasonable because the 

court failed to provide the requisite notice that it was 

considering a departure from the applicable Guidelines range. 

Because Howard argued for a five-year term of supervised 

release, we review for an abuse of discretion. We conclude that 

Howard has demonstrated that the district court abused its 

discretion by failing to provide notice of its intended 

departure, as required by Fed. R. Crim. P. 32(h).

Unless the Government can “demonstrat[e] that the error was 

harmless, i.e. that it did not have a substantial and injurious 

effect or influence on the result,” we must vacate Howard’s 

sentence and remand to the district court. Lynn, 592 F.3d at 

585 (internal quotation marks omitted). We conclude that the 

Government has failed to demonstrate harmlessness. We reject 

the Government’s contention that the 10-year term of supervised 

release was a variance and thus did not require notice. See
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Irizarry v. United States, 553 U.S. 708, 713-14 (2008)

(distinguishing notice requirements for variance and departure). 

At Howard’s sentencing hearing, the increased sentence was 

characterized only as a departure and not as a variance; such 

unambiguous oral pronouncement controls. United States v. 

Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).

Accordingly, although we affirm the 21-month term of 

imprisonment, we vacate Howard’s supervised release term and 

remand for resentencing as to the term of supervised release.2

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.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

 2 By this disposition we express no opinion as to the 

appropriateness of a departure or variance on remand if the 

required procedures are observed.