UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 20-4082


UNITED STATES OF AMERICA,

                     Plaintiff − Appellee,

              v.

TIMOTHY ALAN HIMELRIGHT,

                     Defendant – Appellant.


Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, District Judge. (3:19-cr-00028-GMG-RWT-1)


Submitted: May 12, 2020                                           Decided: August 12, 2020


Before DIAZ, HARRIS, and RUSHING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Nicholas J. Compton, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell,
United States Attorney, Wheeling, West Virginia, Kimberly Crockett, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Timothy Alan Himelright was sentenced to 121 months’ imprisonment and 40

years’ supervised release for distributing child pornography, in violation of 18 U.S.C.

§§ 2252A(a)(2), 2252A(b)(1). On appeal, Himelright argues that the district court erred at

his sentencing in three ways: (1) by failing to address his nonfrivolous argument for a

downward variance, (2) by failing to explain the length or special conditions of his

supervised release, and (3) by imposing a substantively unreasonable sentence.

      We conclude that the district court erred by failing to address Himelright’s

nonfrivolous argument for a downward variance.        We therefore vacate Himelright’s

sentence as procedurally unreasonable and remand for resentencing.



                                            I.

      In October 2018, Himelright sent from West Virginia (via a social media app) a

two-minute video containing child pornography to undercover police in the United

Kingdom.    Himelright also used the app’s chat feature to describe supposed sexual

interactions between him and his daughter. The police in the United Kingdom shared this

information with their counterparts in West Virginia. An investigation by West Virginian

authorities led them to Himelright, who admitted to using the app to view and share child

pornography.

      Himelright pleaded guilty to one count of distributing child pornography in violation

of 18 U.S.C. §§ 2252A(a)(2), 2252A(b)(1). Himelright’s presentence report calculated an

advisory Guidelines sentence range of 97–121 months’ imprisonment, and five years to a
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lifetime of supervised release. Among other enhancements and reductions, Himelright’s

Guidelines range incorporated a two-level enhancement under U.S.S.G. § 2G2.2(b)(6) for

using a computer to commit his offense. Neither Himelright nor the government objected

to the presentence report.

       Himelright did, however, request a downward variance on the ground that the

§ 2G2.2(b)(6) enhancement no longer serves its original purpose because most child

pornography offenses now involve a computer. Based on this argument and two others not

at issue here, Himelright requested a sentence of 78 months’ imprisonment and five years’

supervised release.

       At sentencing, the district court sentenced Himelright to 121 months’ imprisonment,

at the high end of his Guidelines range, and 40 years’ supervised release. The court noted

the severity of Himelright’s crime, his impact on his victims, the need to punish him, and

the need to protect society. The court also noted that, although Himelright’s charged

conduct was limited to one video, this was because Himelright deleted the relevant app,

preventing law enforcement from recovering suspected additional images. In addition, the

district court included over 20 special conditions for Himelright’s supervised release. The

court stated that the special conditions would protect the community, prevent recidivism,

and provide rehabilitation.

       This appeal followed.




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                                             II.

                                             A.

       Himelright raises three issues on appeal: (1) the district court procedurally erred by

failing to address his nonfrivolous § 2G2.2(b)(6) argument for a downward variance, (2)

the district court procedurally erred by not giving an individualized explanation for either

the length or special conditions of his supervised release, and (3) the sentence is

substantively unreasonable.

       We review sentences for abuse of discretion. Gall v. United States, 

, 41

(2007). We first consider whether the district court committed any “significant procedural

error.”

Specifically, to affirm, we must be satisfied that “the district court

properly calculated the defendant’s advisory guidelines range, gave the parties an

opportunity to argue for an appropriate sentence, considered the 18 U.S.C.

§ 3553(a) factors, and sufficiently explained the selected sentence.” United States v. Ross,

, 744 (4th Cir. 2019) (cleaned up). As part of that mandate, “the district court

must provide some individualized assessment justifying the sentence imposed and rejection

of arguments for a higher or lower sentence based on § 3553.”

can

justify its rejection of arguments for a higher or lower sentence in two ways: (1) by directly

addressing a defendant’s non-frivolous argument in its sentencing explanation or (2) by

“engag[ing] 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 United

States v. Webb, -- F.3d --, 

, at *5–6 (4th Cir. July 13, 2020).

                                             B.

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      We agree with Himelright that the district court failed to consider and explain its

rejection of his § 2G2.2(b)(6) argument.

      For starters, the argument isn’t frivolous. The government argues otherwise, relying

on a Sixth Circuit decision rejecting claims that § 2G2.2(b)(6) shouldn’t apply merely

because the use of computers is common in child pornography cases. See United States v.

Walters, 

, 786–87 (6th Cir. 2015). But whether Himelright’s Guidelines range

properly incorporates § 2G2.2(b)(6) and whether it is reasonable to apply § 2G2.2(b)(6) to

Himelright are two separate questions. See 

.

      And it’s clear that the district court failed to either directly or in a “patently obvious”

way address Himelright’s § 2G2.2(b)(6) argument at any point during his sentencing

hearing. See Webb, 

, at *5–6. The court’s sole mention of § 2G2.2(b)(6)

was when it recited the enhancements that led to Himelright’s Guidelines range. Though

the court noted that Himelright used a computer to commit his offense, it never confronted

his argument that § 2G2.2(b)(6)’s application to the record facts warranted a downward

variance.   We have held that sentences with similar deficiencies are procedurally

unreasonable. See, e.g., United States v. Blue, 

, 519 (4th Cir. 2017) (holding

that the district court procedurally erred by addressing only two of Blue’s eight

nonfrivolous arguments for mitigation).

      This error alone warrants a remand. But we also note Himelright’s argument that

the court failed to adequately explain the 40-year term (and special conditions) of

supervised release. Because we remand for resentencing, we leave it to the district court

to consider this argument.

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      For the reasons given, we vacate Himelright’s sentence and remand for

resentencing. 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.

                                                          VACATED AND REMANDED




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