                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4967


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LESLIE OWEN FEREBEE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (2:10-cr-00004-BO-1)


Submitted:   June 23, 2011                 Decided:   June 30, 2011


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Leslie       Owen     Ferebee          pled      guilty       without       a    plea

agreement to: conspiracy to distribute fifty grams or more of

cocaine base and 500 grams or more of cocaine, 21 U.S.C. § 846

(2006)    (Count    One);       distribution           of    fifty     grams     or     more    of

cocaine base, 21 U.S.C. § 841(a)(1) (2006) (Count Two); four

counts    of    distribution        of    a     quantity         of    crack,      21       U.S.C.

§ 841(a)(1) (Counts Three-Six); and distribution of a quantity

of cocaine base and a quantity of cocaine, 21 U.S.C. § 841(a)(1)

(Count Seven).       He was sentenced to 280 months on each count.

The sentences run concurrently.                        Ferebee now appeals, raising

two issues related to his sentence.                          We vacate and remand for

resentencing.



                                               I

            According        to      Ferebee’s              presentence         investigation

report     (PSR),    his     base    offense           level     was      34.         See     U.S.

Sentencing      Guidelines       Manual        § 2D1.1(c)(2)          &   n.10(D)       (2009).

Two levels were added based on possession of a firearm.                                        See

USSG     § 2D1.1(b)(1).           His     adjusted           offense       level      was      36.

However,       because     Ferebee       was       a    career    offender,           see    USSG

§ 4B1.1, and the statutory maximum to which he was subject is

life in prison, see 21 U.S.C. § 841(b)(1)(A), his offense level

was 37. See USSG § 4B1.1.                  Three levels were subtracted for

                                               2
acceptance     of   responsibility.             See    USSG     § 3E1.1.        Ferebee’s

total    offense    level       therefore       was    34,     his   criminal    history

category was VI, and his advisory Guidelines range was 262-327

months.

              At sentencing, defense counsel requested a sentence of

240 months because Ferebee had “undergone a fairly significant

change    during    the     time      he   ha[d]       been     in   custody.”        The

Government     argued     for    a    sentence    in     the    middle     of   Ferebee’s

Guidelines range.

              Without affording Ferebee the opportunity to allocute,

the court sentenced him to 280 months on each count, to run

concurrently.       The court offered no rationale for the chosen

sentence.



                                           II

              Ferebee   contends       that     his     sentence      is   procedurally

unreasonable     because        the   district        court    did   not   sufficiently

explain the selected sentence.                   Because Ferebee argued for a

sentence different than the one imposed, he preserved his claim,

and our review is for abuse of discretion.                      See United States v.

Lynn, 592 F.3d 572, 578 (4th Cir. 2010).                        If we determine that

the   court    abused   its      discretion,      we     will    reverse     unless   the

error was harmless.         See id. at 576.



                                            3
              A district court commits procedural sentencing error

by “failing to adequately explain the chosen sentence.”                               Gall v.

United      States,    552   U.S.    38,      51    (2007).           In    evaluating         the

district court’s explanation for the sentence imposed, we have

held   that,     although     the    district       court       must       consider      the    18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2011) statutory factors

and    explain       the   sentence,    it        need    not    explicitly         reference

§ 3553(a)      or     discuss   every        factor       on    the    record.           United

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).                                 However,

the district court “must make an individualized assessment based

on    the    facts    presented,”      and        apply    the    “relevant         § 3553(a)

factors to the specific circumstances of the case before it.”

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

(internal quotation marks and emphasis omitted).                             The court must

also “state in open court the particular reasons supporting its

chosen sentence” and “set forth enough to satisfy” us that it

has “considered the parties’ arguments and has a reasoned basis

for exercising [its] own legal decisionmaking authority.”                                      Id.

(internal quotation marks and citation omitted).                                  The reasons

articulated by the district court need not be “couched in the

precise language of § 3553(a),” as long as the reasons “can be

matched to a factor appropriate for consideration under that

statute and [are] clearly tied to [the defendant’s] particular



                                              4
situation.”       United States v. Moulden, 478 F.3d 652, 658 (4th

Cir. 2007).

            Here, the district court erred by failing to offer any

explanation of the selected sentence.                    Under this circumstance,

appellate review is impossible, and the error is not harmless.

Accordingly, we must vacate and remand for resentencing.



                                           III

            Ferebee       also     contends           that    the    district        court

committed   reversible       error    when       it    failed   to    afford     him   the

opportunity to allocute prior to sentencing.                        See Fed. R. Crim.

P. 32(i)(4)(A)(ii); see also Green v. United States, 365 U.S.

301, 305 (1961).          Because Ferebee did not object at sentencing

to the denial of allocution, our review is for plain error.                            See

United   States      v.   Olano,     507    U.S.       725,   731-32       (1993).       To

establish plain error, a defendant must show that (1) an error

occurred; (2) the error was plain; and (3) the error affected

his substantial rights.            Id. at 732.           Even if these conditions

are satisfied, we will exercise our discretion to notice the

error    only   if    the   error     “seriously          affected        the   fairness,

integrity or public reputation of judicial proceedings.”                               Id.

(internal quotation marks omitted).

            The   denial     of    allocution         does    not   per    se   affect   a

defendant’s substantial rights.                United States v. Lewis, 10 F.3d

                                           5
1086, 1092 (4th Cir. 1993).                  To demonstrate that such denial

affected his substantial rights, the defendant must establish

that, had he been permitted allocution, his sentence might have

been lower.        See United States v. Cole, 27 F.3d 996, 999 (4th

Cir. 1994).

             We     need     not    decide        whether    the         denial       of     the

opportunity to allocute affected Ferebee’s substantial rights,

because,     as    previously       discussed,         resentencing        is     necessary

based   on   the    district       court’s       failure    to    explain       the    chosen

sentence.     At resentencing, however, the district court should

provide Ferebee the opportunity to address the court prior to

imposition of sentence.



                                            IV

             We    therefore       vacate        the   sentence      and     remand         for

resentencing.         On     remand,   the        district       court    should       permit

Ferebee to allocute in accordance with Rule 32(i)(4)(a)(ii) and

should set forth its reasons for the selected sentence.                                      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



                                             6
