                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4761


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSE SANTOS GONZALEZ-VILLATORO, a/k/a Jose Santos Gonzalez,
a/k/a Jose Lorenzo Gonzales, a/k/a Jose Gonzales, a/k/a
Jose DeLapaz Gonzales, a/k/a Jose Santo Gonzales-Villatoro,
a/k/a Jose Santos Gonzales, a/k/a XX Jose, a/k/a Jose
Morenzo Gonzales,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cr-00087-JCC-1)


Submitted:   February 14, 2011            Decided:   March 17, 2011


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Francis H.
Pratt, Joshua M. Paulson, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.    Neil H. MacBride, United
States Attorney, Kondi J. Kleinman, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jose   Santos       Gonzalez-Villatoro             appeals      the     twenty-

four-month sentence imposed following his guilty plea to illegal

reentry after an aggravated felony.                     On appeal, he contends that

the   sentence     imposed        by    the       district     court      was     rendered

procedurally unreasonable by the court’s failure to adequately

explain its chosen sentence.               We vacate and remand for further

proceedings.

            Gonzalez-Villatoro’s           presentence         investigation          report

(“PSR”) determined that the Guidelines range was twenty-four to

thirty   months.         At    his      sentencing         hearing,       neither      party

objected, and the court adopted the PSR’s findings.                             The court

then heard argument from the parties regarding the appropriate

sentence.      Counsel for Gonzalez-Villatoro argued for a below-

Guidelines    sentence        based     upon      (1)    the   unreasonable         double-

counting effect of a prior conviction being used to increase

Gonzalez-Villatoro’s          criminal     history        points     as    well     as   his

offense level; (2) his positive employment history; and (3) his

pending deportation.

            The    court      stated     that      it     believed     the      Guidelines

calculation to be accurate and understood the advisory nature of

the   Guidelines    as     well    as    its      authority     to    depart      or     vary

downward.      After     hearing        from      Gonzalez-Villatoro,           the    court

sentenced him to twenty-four months, noting that “[t]he reason

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for     the    Court’s      sentence          is       it    reflects      the    nature        and

circumstance,         the    seriousness           of       the   offense,       reflects       the

history and characteristics of the defendant, promotes respect

for     the    law,      provides        just          punishment,      affords         adequate

deterrence      to     criminal         conduct,        avoids      unwarranted          sentence

disparities.”

              When, as here, a defendant properly preserves a claim

of    sentencing       error       in    the       district       court,     we    review       the

sentence       imposed      under       a      deferential         abuse     of        discretion

standard.       Gall v. United States, 552 U.S. 38, 45 (2007); United

States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010).                                  We      must

begin    by    reviewing       the       sentence           for   significant          procedural

error,    including         such    errors         as       “failing    to   calculate          (or

improperly       calculating)           the     Guidelines         range,        treating       the

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

§ 3553(a) [2006] 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.”         Gall, 552 U.S. at 51.                   If there are no procedural

errors, we then consider the substantive reasonableness of the

sentence, taking into account the totality of the circumstances.

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                                      We

presume       reasonable       a    sentence           imposed     within        the        properly



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calculated Guidelines range.                  United States v. Mendoza-Mendoza,

597 F.3d 212, 217 (4th Cir. 2010).

              “When rendering a sentence, the district court ‘must

make     an     individualized          assessment              based    on      the      facts

presented.’”         United States v. Carter, 564 F.3d 325, 328 (4th

Cir.    2009)      (quoting     Gall,    552       U.S.    at    50).     Accordingly,        a

sentencing court must apply the relevant § 3553(a) factors to

the particular facts presented and must “state in open court”

the particular reasons that support its chosen sentence, showing

that it has a reasoned basis for its decision and has considered

the    parties’     arguments.          Id.         A   sentencing       court    need     not,

however,        “robotically       tick        through”          otherwise        irrelevant

subsections of § 3553(a).                 See United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006).                          When, as here, the district

court imposes a within-Guidelines sentence, the district court

may    “provide      a   less    extensive,             while    still    individualized,

explanation.”        United States v. Johnson, 587 F.3d 625, 639 (4th

Cir.    2009),      cert.     denied,     130       S.     Ct.    2128    (2010).          That

explanation,         however,      must        be       sufficient        to     allow      for

“meaningful appellate review” such that we need “not guess at

the district court’s rationale.”                        Carter, 564 F.3d at 329-30

(internal quotation marks omitted).

              We    conclude      that        the       district    court        abused    its

discretion in sentencing Gonzalez-Villatoro.                            While counsel for

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Gonzalez-Villatoro made specific references to § 3553(a) factors

in support of his request for a below-Guidelines, the district

court    neither       addressed          these     arguments      nor       explained     its

reasons for the chosen sentence.                      Although it listed several

§ 3553(a)       factors,     the     district       court   did       not    articulate     an

individualized assessment of the factors and could have made the

same recitation during any sentencing hearing.                              See Carter, 564

F.3d    at   329      (finding       error        where   “[t]he       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”).

             We will reverse this type of preserved error unless we

find that the error was harmless.                     Lynn, 592 F.3d at 576.               “To

avoid reversal for non-constitution, non-structural errors like

[the one presented here], the party defending the ruling below

(here, the Government) bears the burden of demonstrating that

the error was harmless, i.e. that it did not have a substantial

and    injurious       effect   on     the    result.”          Id.    at    585    (internal

quotation marks omitted).                 The Government does not argue in its

brief    that    the    error       was    harmless,      and    the    record      does   not

conclusively       show      that    “explicit       consideration           of    [Gonzalez-

Villatoro’s]       arguments        would     not    have       affected      the    sentence

imposed.”       Id.



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          Accordingly,     we     vacate       Gonzalez-Villatoro’s        sentence

and remand for the district court to properly address Gonzalez-

Villatoro’s    arguments        for    a       lower   sentence     and     provide

individualized reasoning for the sentence imposed. *                    We dispense

with 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




     *
       Of course, by this disposition, we indicate no opinion as
to whether the twenty-four month sentence was substantively
reasonable.



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