PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4446


UNITED STATES OF AMERICA,

                     Plaintiff – Appellee,

              v.

LEMONT JERRONE WEBB, a/k/a L. Dawg, a/k/a Mont,

                     Defendant – Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-cr-00172-BO-1)


Submitted: June 1, 2020                                           Decided: July 13, 2020


Before GREGORY, Chief Judge, WYNN and HARRIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by published opinion. Judge Harris wrote
the opinion, in which Chief Judge Gregory and Judge Wynn joined.


Laura E. Beaver, THE BEAVER LAW FIRM, Raleigh, North Carolina, for Appellant.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
PAMELA HARRIS, Circuit Judge:

       A jury convicted appellant Lemont Jerrone Webb of multiple criminal offenses

related to drug trafficking and money laundering, and the district court sentenced him to

life imprisonment. On appeal, Webb raises several challenges to his conviction, which we

find unavailing. We do, however, agree with Webb that his sentence is procedurally

unreasonable, because the district court failed to address his non-frivolous mitigating

arguments against a life sentence. Accordingly, we affirm Webb’s conviction but vacate

his sentence and remand to the district court for resentencing.



                                              I.

       Lemont Jerrone Webb and several other defendants were indicted on multiple drug-

trafficking and money-laundering counts.           Specifically, Webb was charged in a

superseding indictment with conspiracy to distribute and possess with the intent to

distribute cocaine and crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1);

possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1);

conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); concealment

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and engaging in monetary

transactions with property derived from unlawful activity, in violation of 18 U.S.C. § 1957.

Webb and his co-defendants were charged with running a large-scale, retail-style drug-

distribution organization, and with committing money laundering by using the proceeds of

that organization to purchase real property and vehicles and by making certain cash

deposits into bank accounts.

                                              2
      Webb was tried together with his father Harry Myles, Sr., a co-defendant charged

with money-laundering offenses. The evidence at trial established that over a period of

about a decade – starting in roughly 2003 and ending when Webb was arrested in 2015 –

Webb conspired with others to possess and distribute cocaine and crack cocaine from

trailers in Godwin, North Carolina. Multiple co-conspirators testified that they were paid

to sell drugs from the trailers to a high volume of customers. Law enforcement officers

testified about controlled purchases they made from the trailers, evidence they discovered

in executing search warrants for the properties, and surveillance they had conducted. The

jury also heard testimony that Webb, after he was arrested and waived his Miranda rights,

admitted to law enforcement officers that he had sold crack cocaine until 2012, when he

allegedly “got out of the business,” J.A. 954, and confirmed his voice on incriminating

wiretap recordings.

      With respect to money laundering, the government introduced testimony related to

cash purchases by Webb and Myles of numerous parcels of real property and automobiles.

The government’s evidence showed that some of the property in question, though in

Myles’s name, had been paid for in cash by Webb. In his defense, Webb called several

witnesses to show that he had established a lawful towing business in 2013, from which he

derived legitimate income.

      The jury convicted Webb of drug conspiracy, possession with intent to distribute

crack cocaine, money-laundering conspiracy, and some but not all of the substantive

money-laundering counts with which he was charged. The district court sentenced Webb

to life imprisonment, and Webb timely appealed.

                                            3
                                             II.

       On appeal, Webb raises three challenges to his conviction, and also argues that his

life sentence is procedurally and substantively unreasonable. We begin with Webb’s

arguments concerning his conviction and turn next to Webb’s sentence, providing

additional factual context as necessary.

                                             A.

                                              1.

       In his first challenge to his conviction, Webb argues that the district court erred in

admitting evidence of his prior state-court convictions for drug-related offenses.

Specifically, the district court allowed the government to introduce at trial – over Webb’s

objection – evidence that Webb pleaded guilty in state court in 2012 to charges that in 2009

and 2010, he sold cocaine, possessed cocaine with the intent to distribute it, and maintained

a dwelling for the purpose of selling cocaine. According to Webb, that evidence was not

admissible under Rule 404(b) of the Federal Rules of Evidence. We review a district

court’s evidentiary rulings for abuse of discretion, see United States v. Bush, 

,

194–95 (4th Cir. 2019), and find no such abuse here.

       “Federal Rule of Evidence 404(b)(1) prohibits evidence of a crime, wrong, or other

act from being used to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” United States v. Sutherland,

, 429 (4th Cir. 2019) (internal quotation marks omitted). But Rule 404(b)

“does not affect the admission of evidence that is intrinsic to the alleged crime.”

(internal quotation marks omitted). “[E]vidence of other bad acts is intrinsic if, among

other things, it involves the same series of transactions as the charged offense, or if it is

necessary to complete the story of the crime on trial.”

quotation

marks omitted). “[W]here testimony is admitted as to acts intrinsic to the crime charged,

and is not admitted solely to demonstrate bad character, it is admissible.” United States v.

Chin, 

, 88 (4th Cir. 1996).

       This is just such a case. The state convictions at issue were for possessing and

intending to distribute cocaine in the same place and during the same time period as the

drug-trafficking conspiracy – a conspiracy to distribute cocaine as well as crack cocaine –

charged in the federal indictment. As we recently held in United States v. Bush, a district

court does not abuse its discretion by treating such convictions as intrinsic to a federal drug

conspiracy charge under Rule 404(b). 

–97 (finding state conviction

record “intrinsic” where it proves “the distribution of the same controlled substance [], in

the same city [], during the same period of time” charged in the federal case). Given the

temporal and substantive overlap between Webb’s state convictions and the federal

conspiracy charge, the district court reasonably could find that the state convictions were

introduced as direct proof that Webb engaged in the charged conspiracy, and not to support

an impermissible inference that Webb’s prior offenses revealed a “propensity” to engage

in drug-related crimes. See United States v. Brizuela, No. 19-4656, --- F.3d ----, 

, at *6 (4th Cir. June 19, 2020) (distinguishing forbidden “propensity” evidence




                                              5
from intrinsic evidence). 1 Accordingly, we find no abuse of discretion in the introduction

of the state convictions in question.

                                              2.

       Webb’s second challenge to his conviction concerns a statement by the prosecutor

during closing arguments to the jury. At trial, Janice Smith, a cooperating witness who

was part of the drug conspiracy, testified about overhearing an argument between Webb

and Myles over which of them owned the property on which a trailer sat. The argument

broke out in the trailer after Smith – at Webb’s direction – attempted to prevent Myles from

bringing a woman into a back room already occupied by Webb and a different woman. In

recounting, during his closing argument, Smith’s testimony about the dispute between

Webb and Myles, the prosecutor elaborated: “Now, [Webb] was actually in the back room

with another woman – not his wife, . . . [who is] . . . in the back of the court[room] . . . .”

J.A. 1051. Although Webb did not object at the time, he now argues on appeal that the

government improperly accused him of sexual infidelity and thus denied him a fair trial.

We find no reversible error.




       1
         To the extent Webb argues that the district court should have excluded evidence
of his state convictions under Rule 403 as more prejudicial than probative, we again
disagree. See Fed. R. Evid. 403; United States v. Sterling, 

, 247–48 (4th Cir.
2017) (setting out Rule 403 standard). Webb’s guilty pleas to drug-trafficking activity in
2009 and 2010 were directly relevant to whether he conspired to traffic in crack cocaine
during the period charged in the federal indictment, which encompassed those years. And
while the evidence doubtlessly was prejudicial, it was not “unfair[ly]” so within the
meaning of Rule 403. Fed. R. Evid. 403; United States v. Siegel, 

, 319–20
(4th Cir. 2008).

                                              6
       “[G]reat latitude is accorded counsel in presenting closing arguments to a jury,” but

“the guiding principle is that a prosecutor should not strike ‘foul blows.’” United States v.

Ollivierre, 

, 418 (4th Cir. 2004), cert. granted, judgment vacated on other

grounds, 

(2005). “In assessing whether a prosecutor’s argument warrants

reversal, we apply a two-part test, i.e., (1) whether the argument was improper, and if so,

(2) whether it so prejudicially impacted the defendant’s substantial rights as to deprive him

of a fair trial.”

(citing United States v. Chorman, 

, 113 (4th Cir.

1990)). And here, as Webb concedes, because no objection was lodged at trial, our review

is for plain error only, see

and under United States v. Olano, 

(1993), we may reverse only if any error was plain and affected substantial rights, and a

failure to reverse would “seriously affect the fairness, integrity or public reputation of

judicial proceedings,”

(internal quotation marks and alteration omitted).

       Webb cannot meet that standard here. We may assume that the prosecutor’s

statement was improper, and plainly so. The government insists that the prosecutor’s

reference to Webb’s alleged marital infidelity was necessary to corroborate Smith’s

account of the dispute between Webb and his father, but that is a hard argument to follow,

particularly because Smith’s testimony did not identify the woman on the scene with Webb.

And the government offers no theory at all for why it would have been appropriate to

further shame Webb by pointing out, to the jury, that his wife was present in the courtroom.

There is a difference between justifiably “hard blows” and improper “foul” ones, Berger

v. United States, 

, 88 (1935), and this statement seems clearly to cross the line.



                                             7
       But a plainly improper statement is not enough to merit reversal on plain-error

review. See 

–22. Webb also must show, at a minimum, that the

statement so “prejudicially affected [his] substantial rights” that it “depriv[ed] him of a fair

trial.”

Here, where the statement in question was fleeting and isolated, and the

“competent proof introduced to establish” Webb’s guilt was strong

(quoting

United States v. Mitchell, 

, 241 (4th Cir. 1993)), we do not think Webb can meet

that high threshold. See

(discussing factors that guide inquiry). Taken in

context and in light of the full range of evidence against Webb, we cannot say that the

prosecutor’s statement likely misled the jury and affected its verdict. See

.

Accordingly, Webb cannot prevail on this claim under plain-error review.

                                               3.

       Webb’s final argument against his conviction arises under the Double Jeopardy

Clause of the Fifth Amendment, which provides that no person may twice be put in

jeopardy for the same offense. See U.S. Const. amend. V; Gamble v. United States, 139 S.

Ct. 1960, 1963–64 (2019). According to Webb, that Clause is implicated because he was

tried in federal court for the same drug-related offenses for which he already had been tried

and convicted in state court – as evidenced by the state-court convictions introduced at his

federal trial.

       As Webb effectively concedes, however, his federal prosecution would be

permissible under the Double Jeopardy Clause’s “dual-sovereignty” doctrine, which allows

the federal government to bring federal charges even when a state already has prosecuted

a defendant for the same conduct. See 

. At the time that Webb

                                               8
filed his brief on appeal, the Supreme Court had before it a case calling into question that

doctrine. But the Supreme Court now has reaffirmed the dual-sovereignty doctrine, see

Webb’s double jeopardy claim.

                                            B.

       We turn now to Webb’s life sentence, which Webb challenges as both procedurally

and substantively unreasonable. We begin, as we must, with procedural reasonableness,

see Gall v. United States, 

, 51 (2007), and conclude that Webb’s life sentence

is procedurally unreasonable because the district court entirely failed to address several

non-frivolous arguments for a lower sentence. Accordingly, we vacate Webb’s sentence

and remand to the district court for resentencing.

                                             1.

       We begin with a brief description of Webb’s sentencing proceedings. Before

Webb’s sentencing, Webb’s presentence report had recommended a Sentencing Guidelines

range of life imprisonment. That recommendation rested on a base offense level of 38 –

reflecting the quantities of crack cocaine involved in Webb’s offenses – adjusted to an

offense level of 43 after the application of several sentencing enhancements. That offense

level, in turn, translated to a Sentencing Guidelines range of life imprisonment for all

criminal history categories, including Webb’s criminal history category of V.

       At sentencing, Webb was given a chance to allocute. Webb spoke briefly, using the

opportunity to apologize to his family and then to criticize his indictment as “fatally

flawed” and move for bond. J.A. 1445–46. When Webb was finished, the district court

heard argument on objections to the recommended Guidelines calculations, including

                                             9
Webb’s objection to the scoring of his criminal history. The government conceded that

Webb’s criminal history category should be lowered from V to IV, but the parties agreed

that this change would not affect the Guidelines range, given Webb’s offense level. The

court concluded this portion of the hearing with a finding that Webb had an offense level

of 43 and a criminal history category of IV, resulting in a Guidelines sentencing range of

life imprisonment.

       Webb’s counsel then turned to the heart of his argument: that the recommended life

sentence was longer than necessary in light of the factors set out in 18 U.S.C. § 3553(a).

He began by emphasizing one important distinction between Webb and others involved in

the case: Since January of 2013, Webb had attempted to change his conduct and “do

something different,” J.A. 1453, devoting substantial time to a lawful towing business and

towing cars on almost a daily basis from 2013 through his arrest in 2015. Second, Webb’s

counsel pointed to the sentences given to several of Webb’s co-conspirators – including

some who were “two or three rungs up the ladder,” J.A. 1454, in terms of their leadership

roles in the conspiracy – all of which were significantly lower than Webb’s recommended

life sentence. That disparity, counsel argued, indicated that the sentencing purposes of

§ 3553(a) could be achieved by a much lower sentence in Webb’s case, as well.

       Moreover, counsel continued, Webb was 44 at the time of sentencing, so that a 20-

year sentence would detain him until he was in his 60s and thus unlikely to reoffend. Such

a sentence, counsel argued, would be sufficient to reflect the seriousness of Webb’s

offenses and to protect the public – “[I]s there any inclination that if he’s out of jail in his

60s, that he’s some danger to the public?” – while still giving Webb “some hope at the end

                                              10
of the tunnel.” J.A. 1455. And finally, counsel concluded, Webb had “conducted himself

professionally . . . throughout the proceedings” and “accept[ed] the seriousness of what’s

going on.” J.A. 1456.

       In response, the district court directly addressed counsel’s description of Webb’s

comportment: “His allocution . . . undercuts much of what you said here today. . . . [H]e

disagrees with the fact of his conviction and he’s hostile to that. I don’t see a flicker of

acceptance of responsibility . . . .” J.A. 1456. The court then went on to hear from the

government, which argued for the recommended life sentence and emphasized the negative

effects of Webb’s decade-long drug conspiracy on his community. The government also

responded to some of Webb’s arguments for a lower sentence: Because Webb had

delegated to others in the course of committing his offenses, even advanced age upon

release from prison might not prevent him from reoffending – “What’s to say that he can’t

do that [at] 70?”    J.A. 1459.    And as to Webb’s towing business, the government

acknowledged Webb’s efforts but emphasized that he had returned to selling drugs before

his arrest.

       The court then proceeded directly to imposition of a life sentence. The entirety of

its explanation was as follows:

       Well, my opinion is that the guidelines adequately represent the requirements
       of 3553(a) in this case and as the government has pointed out, this was a long,
       extensive, and pervasive drug conspiracy that profoundly impacted on a
       community and was a cancer eating away at the fabric of society, it was
       destroying many, many lives, he profited from it during its entire course. He
       made an attempt, both in the real practice of the crime and here in court to
       avoid accountability and to avoid responsibility. And the factors that are
       weighed under 3553(a) suggests that a sentence of life is an appropriate
       guideline and it comes within the heartland of that sentence. And that there

                                             11
       is, really is no other alternative sentence that would protect the community
       and adequately punish him for the crimes that he committed.

J.A. 1461. 2

                                             2.

       Webb argues that his life sentence is procedurally unreasonable because the district

court did not address his non-frivolous arguments for a lower sentence and thus failed to

put on the record the requisite “individualized assessment” of his case.    United States v.

Blue, 

, 518 (4th Cir. 2017) (quoting 

). We review a district

court’s sentence for abuse of discretion, see United States v. Provance, 

, 217

(4th Cir. 2019), and we agree with Webb that his life sentence is procedurally unreasonable.

       We review all criminal sentences for reasonableness, see 

,

beginning with procedural reasonableness and moving on to substantive reasonableness

only if there are no procedural errors, see

. One of the

entailments of procedural reasonableness is that a district court “place on the record an

individualized assessment based on the particular facts of the case before it.” United States

v. Carter, 

, 330 (4th Cir. 2009) (internal quotation marks omitted). And while

“[t]he adequacy of the sentencing court’s explanation depends on the complexity of each

case,” the court always must consider a defendant’s non-frivolous arguments for a lower



       2
          The district court’s judgment specified the precise breakdown of the sentence
imposed: a life sentence on the drug-conspiracy count, a 40-year sentence on the drug-
distribution count, 20-year sentences on the money-laundering conspiracy and some of the
substantive money-laundering counts, and 10-year sentences on the remaining money-
laundering counts, all to run concurrently.

                                             12
sentence. 

. It is by now well-established, that is, that a district court

“must address or consider all non-frivolous reasons presented for imposing a different

sentence and explain why [it] has rejected those arguments.” United States v. Ross, 

, 744 (4th Cir. 2019), cert. denied, 

(2019) (citations omitted).

       The district court failed to do so here. Nowhere in the district court’s brief

explanation of its sentence, for instance, is there mention of Webb’s argument that given

his age, a shorter, 20-year sentence would be sufficient to incapacitate him until he is in his

60s and thus less likely to recidivate. There is no question that this is a non-frivolous

argument; we have recognized the validity of precisely such arguments in finding a life

sentence substantively unreasonable. See United States v. Howard, 

, 533 (4th

Cir. 2014) (drawing on “sound empirical evidence” and “studies demonstrat[ing] that the

risk of recidivism is inversely related to an inmate’s age”). But in explaining its sentence,

the district court neither acknowledged this argument nor provided any explanation for

rejecting it. The same is true of Webb’s arguments regarding sentencing disparities with

his co-conspirators – an argument drawn directly from the § 3553(a) factors, see 18 U.S.C.

§ 3553(a)(6) (in imposing sentence, a district court shall consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct”) – and his legitimate work history. The district court

entirely failed to acknowledge or to explain its assessment of those non-frivolous

arguments for a sentence other than life imprisonment.

       The government does not dispute that the district court failed to address these non-

frivolous mitigating arguments expressly when it explained its sentence. Instead, to the

                                              13
extent it confronts this problem at all, it seems to suggest that we may find the necessary

consideration of Webb’s arguments not in the district court’s explanation for its sentence,

but implicit in the “context” of the sentencing hearing. Gov’t Br. at 43. We disagree.

Although we have looked hard for signs of this consideration, we have come up mostly

empty.

         It is true that our review of a district court’s sentencing explanation is “not limited

to the court’s statements at the moment it imposes sentence,” but extends to the “full

context, including the give-and-take of a sentencing hearing.” United States v. Nance, 

, 213 (4th Cir. 2020). And there will be cases in which a sentencing court engages

with a defendant’s arguments in a way that makes “patently obvious” that it has given

specific attention to a non-frivolous argument for a shorter sentence. 

; see also 

. Indeed, we think this is just such a case when it

comes to the argument that Webb’s professional comportment and acceptance of

responsibility merit a shorter sentence: As described above, the district court directly

engaged with that argument at sentencing, contrasting counsel’s description of Webb with

Webb’s own allocution and explaining its view that Webb had shown not “a flicker of

acceptance of responsibility.” J.A. 1456. That is the kind of give-and-take that may

“make[] it patently obvious that the district court found [the defendant’s] arguments to be

unpersuasive,” 

(internal quotation marks omitted), thus allowing us

to evaluate the court’s reasoning on appeal, see United States v. Montes-Pineda, 

, 381 (4th Cir. 2006) (explaining that the “context surrounding a district court’s



                                               14
explanation may imbue it with enough content for us to evaluate both whether the court

considered the § 3553(a) factors and whether it did so properly”).

       But that was the district court’s only comment during either counsel’s argument as

to the reasonableness of a life sentence. There is no similar give-and-take with respect to

defense counsel’s other three arguments for a lower sentence; at no point in the hearing did

the court engage either Webb’s counsel or the government’s lawyer in a discussion of

Webb’s age and lowered future risk of recidivism, or the potential for a disparity between

Webb’s life sentence and the lower sentences of his co-conspirators, or the possible

mitigating effect of Webb’s legitimate work history. It may well be the case, as the

government posits, that the district court “listened intently” to Webb’s counsel as he made

these arguments. Gov’t Br. at 43. “But providing the defendant with ample opportunity

to present arguments and properly considering those arguments are separate requirements

of procedural reasonableness,” and we cannot infer the requisite consideration from silence

alone, no matter how attentive. 

(citation omitted); see also 

.

       At bottom, the government is asking us to do what we have said we may not: fill in

the gap in the district court’s sentencing explanation with a “guess” as to how that court

might have assessed the defendant’s non-frivolous arguments for something other than a

life sentence. 

(quoting 

–30). Because the

district court did not put on the record its consideration of three of Webb’s non-frivolous

arguments for a lower sentence or explain its rejection of those arguments, Webb’s

sentence is procedurally unreasonable. And because we “lack the necessary information

                                            15
to conduct a meaningful appellate review,” we cannot evaluate the substantive

reasonableness of Webb’s life sentence.

Webb’s sentence as

procedurally unreasonable and remand for resentencing.



                                            III.

       For the reasons given above, we affirm Webb’s conviction but vacate his sentence

and remand for resentencing consistent with this opinion. 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.

                         AFFIRMED IN PART, VACATED IN PART, AND REMANDED ∗




       ∗
       This opinion is published without oral argument pursuant to this Court’s Standing
Order 20-01, http://www.ca4.uscourts.gov/docs/pdfs/amendedstandingorder20-01.pdf
(amended Apr. 7, 2020).

                                            16