United States v. Krystll Gardner , 255 F. App'x 475 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 23, 2007
No. 07-11837 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00361-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KRYSTYLL GARDNER,
a.k.a. Veronica Smith,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 23, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Krystyll Gardner appeals her sentence of 36 months of imprisonment
imposed following her plea of guilty to misprision of a felony. See 18 U.S.C. § 4.
Gardner argues that the sentence, which was the statutory maximum and above the
Guidelines sentencing range of 10 to 16 months of imprisonment, was
unreasonable. We vacate and remand for resentencing.
We review a sentence for reasonableness. United States v. Talley, 431 F.3d
784, 785 (11th Cir. 2005). “Review for reasonableness is deferential.” Id. at 788.
“[T]he party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” Id. “When we review a sentence for reasonableness, we do not, as the
district court did, determine the exact sentence to be imposed.” Id. “We must
evaluate whether the sentence imposed by the district court fails to achieve the
purposes of sentencing as stated in section 3553(a).” Id. Although “there is a
range of reasonable sentences from which the district court may choose,” id., there
are also “sentences outside the range of reasonableness that do not achieve the
purposes of sentencing stated in § 3553(a) . . . that . . . the district court may not
impose,” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006). We have
stated that “when imposing a sentence falling far outside of the Guidelines range,
based on the § 3553(a) factors, ‘[a]n extraordinary reduction must be supported by
extraordinary circumstances.’” United States v. McVay, 447 F.3d 1348, 1357
2
(11th Cir. 2006) (quoting United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.
2005)) (second alteration in original). The same is true for an extraordinary
upward variance. See United States v. Valdes, No. 06-15951, slip op. at 3 (11th
Cir. September 18, 2007).
The extraordinary upward variance of Gardner’s sentence, from the
Guidelines range of 10 to 16 months of imprisonment to 36 months of
imprisonment – more than double the high end of the advisory range, was not
supported by extraordinary circumstances. The district court relied on “the
significant level of [Gardner’s] involvement in the scheme” and the need for
deterrence to justify the upward variance. Neither of these circumstances are
sufficiently extraordinary to justify the extraordinary variance imposed in this case.
Although the district court stated that the facts “probably . . . did not support
an aggravating role enhancement,” it relied on Gardner’s role as a “critical
participant” to justify the upward variance. Gardner’s sentence was nine months
longer than a sentence at the high end of the advisory Guidelines range, had the
district court applied the maximum aggravating-role enhancement of four levels.
See United States Sentencing Guidelines § 3B1.1 & Sentencing Table (Nov. 2006).
If Gardner’s role in the scheme was insufficient to warrant an aggravating-role
enhancement, then Gardner’s role surely was not so extraordinary that it supported
3
the upward variance imposed by the district court. In the absence of any
extraordinary circumstances, Gardner’s extraordinary variance was unreasonable.
See United States v. Crisp, 454 F.3d 1285, 1288 (11th Cir. 2006).
Because the sentence imposed was unreasonable, we
VACATE AND REMAND FOR RESENTENCING.
4