UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4305


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

TRAVIS MONTEZ GRAHAM,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Anderson. Bruce H. Hendricks, District Judge. (8:18-cr-00672-BHH-1)


Submitted: June 8, 2020                                           Decided: July 14, 2020


Before WILKINSON, HARRIS, and RUSHING, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


Lora Collins Blanchard, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. A. Lance Crick, Acting
United States Attorney, Sloan P. Ellis, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Travis Montez Graham pleaded guilty, without the benefit of a plea agreement, to

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

(b)(1)(C) (2018), and possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A) (2018). The district court sentenced Graham to a

total of 84 months of imprisonment and ordered him to forfeit the firearm and ammunition

in his possession at the time of his arrest. In accordance with Anders v. California, 

(1967), Graham’s counsel filed a brief certifying that there are no meritorious

grounds for appeal but questioning whether Graham’s sentence is reasonable. Graham

filed a pro se supplemental brief. * We directed supplemental briefing on whether, in light

of United States v. Blue, 

(4th Cir. 2017), the district court failed to explain

adequately its reasons for rejecting Graham’s arguments for a lower sentence and whether

the district court complied with Rule 32.2 of the Federal Rules of Criminal Procedure. We

now affirm and remand for further proceedings.

                                             I.

       “We review a sentence for reasonableness ‘under a deferential abuse-of-discretion

standard.’” United States v. McCoy, 

, 351 (4th Cir. 2015) (quoting Gall v.


       *
          In his supplemental brief, Graham raises a claim of ineffective assistance of
counsel, alleging that counsel failed to inform him of the § 924(c) elements that the
Government needed to prove. “[U]nless an attorney’s ineffectiveness conclusively appears
on the face of the record, such claims are not addressed on direct appeal” and “should be
raised, if at all, in a 28 U.S.C. § 2255 [(2018)] motion.” United States v. Faulls, 

, 507-08 (4th Cir. 2016). Our review of the record leads us to conclude that Graham
fails to meet this high standard.

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United States, 

, 41 (2007)). This review encompasses the sentence’s procedural

and substantive reasonableness.      

.       In determining procedural

reasonableness, we must consider whether the district court properly calculated the

Sentencing Guidelines range, treated the Guidelines as advisory rather than mandatory,

gave the parties an opportunity to argue for an appropriate sentence, considered the 18

U.S.C. § 3553(a) (2018) factors, selected a sentence based on accurate facts, and

sufficiently explained the chosen sentence.

       “A sentencing court’s explanation is sufficient if it, although somewhat brief[ly],

outline[s] the defendant’s particular history and characteristics not merely in passing or

after the fact, but as part of its analysis of the statutory factors and in response to defense

counsel’s arguments for a downward departure.” 

(internal quotation

marks omitted). In Blue, this court held that if a defendant raises a nonfrivolous argument

for imposing a different sentence, the district court must address the argument and explain

why it is being rejected.

“[W]here the district court could have made

precisely the same statements in support of a different sentence, we have found the

explanation to be inadequate and have remanded for resentencing.”

(internal

quotation marks omitted). “The context surrounding a district court’s 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.”

(internal quotation marks

omitted). “Absent such contextual indicators, however, we have declined to guess at the

district court’s rationale, searching the record for statements by the Government or defense



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counsel or for any other clues that might explain a sentence.”

omitted).

       Graham challenges the district court’s explanation of his sentence, contending that

the district court failed to address his nonfrivolous arguments for a variant sentence. The

Government argues that any procedural error is harmless. Although the district court “need

not robotically tick through the § 3553(a) factors,” United States v. Helton, 

,

153 (4th Cir. 2015) (internal quotation marks omitted), the court must “set forth enough to

satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned

basis for exercising [its] own legal decision-making authority,” 

(internal quotation marks omitted).

       “[F]or every sentence—whether above, below, or within the Guidelines range—a

sentencing court must place on the record an individualized assessment based on the

particular facts of the case before it.” United States v. Lynn, 

, 576 (4th Cir.

2010) (internal quotation marks omitted). The “individualized assessment need not be

elaborate or lengthy, but it must provide a rationale tailored to the particular case at hand

and adequate to permit meaningful appellate review.” United States v. Carter, 

, 330 (4th Cir. 2009) (internal quotation marks omitted). While the district court did

not plainly address each nonfrivolous argument that Graham raised, we conclude that any

procedural error in the court’s failure to do so is harmless. See United States v. Nelson,

No. 18-4922, 

, at *2 (4th Cir. May 19, 2020).

       Counsel next questions whether Graham’s sentence is substantively reasonable.

“Any sentence that is within or below a properly calculated Guidelines range is

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presumptively reasonable.” United States v. Louthian, 

, 306 (4th Cir. 2014).

We conclude that Graham’s argument does not overcome the presumption of

reasonableness accorded the sentence imposed by the district court.              Accordingly,

Graham’s 84-month sentence of imprisonment is reasonable.

                                              II.

       Turning to forfeiture, Graham did not object below to the district court’s failure to

include the forfeiture in announcing the sentence or in the criminal judgment, as required

by Fed. R. Crim. P. 32(b)(4)(B); thus, we review the issue for plain error. United States v.

Moore, 

, 939 (4th Cir. 2016) (providing standard). Here, we conclude that

the district court committed error, and that the error is plain, but that the court’s failure to

comply with Rule 32 did not affect Graham’s substantial rights because the record

establishes that Graham had notice of the forfeiture before sentencing. See United States

v. Martin, 

, 309-10 (4th Cir. 2011) (“[W]e refuse to vacate the district court’s

tardy forfeiture order[]” where “[defendants] were indisputably on notice at the time of

sentencing that the district court would enter forfeiture orders.”). Although the district

court’s omissions do not warrant vacatur of the forfeiture order, we conclude that remand

is appropriate so that the district court may issue an amended criminal judgment that

includes the forfeiture order, see Fed. R. Crim. P. 32.2(b)(4)(B), 36, and corrects page one

of the criminal judgment to clarify that the district court dismissed at sentencing only the

money judgment portion of the forfeiture allegation, see Fed. R. Crim. P. 36; United States

v. Osborne, 

, 283 n.1 (4th Cir. 2003) (“It is normally the rule that where a



                                               5
conflict exists between an orally pronounced sentence and the written judgment, the oral

sentence will control.”).

                                             III.

       In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment

and remand for the district court to issue a corrected criminal judgment with regard to

forfeiture. This court requires that counsel inform Graham, in writing, of the right to

petition the Supreme Court of the United States for further review. If Graham requests that

a petition be filed, but counsel believes that such a petition would be frivolous, then counsel

may move in this court for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Graham.

       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 AND REMANDED




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