No. 10-4967
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:
Decided:
PER CURIAM:
Leslie
Owen
Ferebee
pled
guilty
without
plea
(Count
One);
distribution
of
fifty
grams
or
more
of
of
distribution
of
quantity
of
crack,
21
U.S.C.
resentencing.
I
According
report
(PSR),
Sentencing
to
his
Ferebees
base
Guidelines
offense
Manual
presentence
level
was
2D1.1(c)(2)
&
investigation
34.
See
n.10(D)
U.S.
(2009).
See
USSG
36.
2D1.1(b)(1).
However,
because
His
Ferebee
adjusted
was
offense
career
level
offender,
was
see
USSG
acceptance
total
of
offense
responsibility.
level
See
therefore
was
USSG
34,
3E1.1.
his
Ferebees
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
Government
the
argued
time
for
he
ha[d]
sentence
been
in
in
the
custody.
middle
of
The
Ferebees
Guidelines range.
Without affording Ferebee the opportunity to allocute,
the court sentenced him to 280 months on each count, to run
concurrently.
sentence.
II
Ferebee
unreasonable
contends
because
the
that
his
district
sentence
court
did
is
procedurally
not
sufficiently
If we determine that
the
court
abused
its
discretion,
we
will
reverse
unless
the
States,
552
U.S.
38,
51
(2007).
In
Gall v.
evaluating
the
that,
although
the
district
court
must
consider
the
18
explain
3553(a)
or
the
sentence,
discuss
it
every
need
not
factor
on
explicitly
the
reference
record.
United
However,
the
facts
presented,
and
apply
the
relevant
3553(a)
States
v.
Carter,
564
F.3d
325,
328
(4th
Cir.
2009)
Id.
The reasons
situation.
Cir. 2007).
Here, the district court erred by failing to offer any
explanation of the selected sentence.
III
Ferebee
committed
also
reversible
contends
error
when
that
it
the
failed
district
to
afford
court
him
the
States
v.
Olano,
507
U.S.
725,
731-32
See
(1993).
To
Id. at 732.
only
if
the
error
seriously
affected
the
fairness,
Id.
denial
of
allocution
does
not
per
se
affect
been lower.
Cir. 1994).
We
need
not
decide
whether
the
denial
of
the
as
based
the
on
sentence.
previously
district
discussed,
courts
resentencing
failure
to
is
explain
necessary
the
chosen
IV
We
therefore
resentencing.
On
vacate
remand,
the
the
sentence
district
and
court
remand
should
for
permit
with
oral
argument
because
the
facts
and
We
legal