United States v. Maynor , 310 F. App'x 595 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4688
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENN MAYNOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:07-cr-00104-BO-1)
Submitted: January 20, 2009 Decided: February 9, 2009
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
John P. O’Hale, NARRON, O’HALE & WHITTINGTON, PA, Smithfield,
North Carolina; Douglas Parsons, JOHNSON & PARSON, Clinton,
North Carolina, for Appellant. George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Glenn Maynor appeals from his seventy-two month
sentence entered pursuant to his guilty plea to conspiracy to
commit an offense against the United States and perjury.
Maynor’s advisory Guidelines range was eighteen to twenty-four
months in prison. On appeal, Maynor asserts that his sentence
was procedurally and substantively unreasonable. Because we
agree that the district court made significant procedural error,
we vacate and remand for another sentencing hearing.
A district court must engage in a multi-step process
at sentencing. First, it must calculate the appropriate
advisory Guidelines range. It must then consider the resulting
range in conjunction with the factors set forth in 18 U.S.C.
§ 3553(a) (2006) and determine an appropriate sentence. Gall v.
United States, 128 S. Ct. 586, 596 (2007). Courts of appeal
review a sentence for reasonableness, applying an abuse of
discretion standard. Id. at 597; United States v. Go, 517 F.3d
216, 218 (4th Cir. 2008). We must first determine that the
district court did not commit any “significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence - including an explanation for any deviation
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from the Guidelines range.” Gall, 128 S. Ct. at 597. We then
consider the substantive reasonableness of the sentence, and may
apply a presumption of reasonableness to a within-Guidelines
sentence. Go, 517 F.3d at 218; see Gall, 128 S. Ct. at 597.
Maynor claims that his sentence was procedurally
unreasonable on two bases: (1) the court was required to first
consider a departure sentence, and (2) the court did not
adequately explain the chosen sentence. Addressing the first
argument, we have held that, prior to imposing a variance
sentence, the district court should consider the propriety of a
traditional departure under the Guidelines. See United
States v. Fancher, 513 F.3d 424, 427 n.1 (4th Cir. 2008). Here,
the presentence report (“PSR”) alerted the court to the
possibility of departure under U.S. Sentencing Guidelines Manual
§ 5K2.21 (2007) (upward departure based on dismissed or
uncharged conduct). However, the court did not address the
appropriateness of a Guidelines departure and instead chose to
impose a variance sentence, presumably based at least in part on
conduct that could have justified a departure under § 5K2.21.
While one could argue whether this error is “significant” or
not, we need not address this issue at this time since the
district court’s additional errors discussed below require that
Maynor be resentenced.
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The length and amount of detail of the district
court’s reasoning depends upon the circumstances. Rita v.
United States, 551 U.S. 338 (2007). While a sentencing court is
not required to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each
factor, the court should set forth enough to satisfy the
appellate court that the district court considered the factors
and the parties’ arguments. See United States v. Moulden, 478
F.3d 652, 657 (4th Cir. 2007). A major departure must be
supported by a more significant justification than a minor one,
and the court must adequately explain the chosen sentence to
permit meaningful appellate review. Gall, 128 S. Ct. at 597.
At Maynor’s sentencing, the district court did not
explicitly examine the § 3553 factors, either individually or
together. The court did not address Maynor’s arguments
regarding his clean criminal record and the fact that his life
was ruined, nor did the court address the Government’s argument
that the sentence should be crafted to encourage substantial
assistance. Instead, the court commented on the corrupt
politics of Robeson County and noted that Maynor, as the County
Sheriff, should have made greater strides to correct wrongs.
The court also stated that Maynor should have come forward
sooner and disclosed more information. Finally, the court noted
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that corruption had infested Robeson County since the 1950’s,
and it was the duty of the court to address it.
The major portion of the court’s discussion of the
corrupt politics of Robeson County concerned a time period prior
to Maynor’s election. Thus, it is unclear how the County’s
history impacted the § 3553 factors. Next, while the court
appropriately noted that Maynor should have behaved differently
in office, the court failed to explain how a sentence nearly
300% more than the top of the advisory Guidelines range
appropriately reflected this circumstance, given that Maynor had
already received a two-level adjustment for abusing a position
of public trust. * The court also appears to have relied on a
perception that Maynor had not completely cooperated with the
Government. There is nothing in the record to support this;
Maynor’s counsel stated, without objection, that Maynor came
forward of his own accord, very shortly after the perjury, and
provided the Government with information prior to his guilty
plea. While the Government referenced further future
cooperation, it is not clear to what this referred or whether
Maynor was requested to give or could have given this
cooperation earlier. Finally, the court’s perceived need to
*
We do not hold that a 72-month sentence could not
appropriately reflect the consequences of Maynor’s failures in
office; we note only that the court offered no explanation.
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right the wrongs that occurred in Robeson County since the
1950’s is an inappropriate basis for a variance sentence, since
Maynor was indisputably not responsible for any wrongdoing prior
to 1994.
While, after the sentencing hearing, the court
provided a report checking certain § 3553 factors as the basis
for its decision, this report was insufficient to satisfy the
court’s duty to make an individualized assessment of Maynor’s
circumstances and provide an explanation of sentence. The court
relied on irrelevant and faulty assumptions and failed to tie
these assumptions to the § 3553 factors. The large variance in
this case required significant analysis that is simply absent.
Accordingly, we conclude that the court abused its discretion
when imposing sentence and that the court’s errors require that
Maynor be resentenced.
In addition, Maynor requests a different district
court judge on remand based on the court’s statements about the
history of Robeson County and its stated beliefs regarding
Maynor’s alleged failure to fully cooperate and other crimes for
which Maynor was responsible. We decline to grant this request.
We decline to address the substantive reasonableness
of Maynor’s sentence at this time, except to note that we
express no opinion on an appropriate sentence. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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