United States v. Terry Hyder , 499 F. App'x 307 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY SCOTT HYDER, a/k/a Ryan Terry Hyder, a/k/a Ryan Fred
Wilson,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00070-MR-1)
Submitted: November 30, 2012 Decided: December 17, 2012
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Melissa L.
Rikard, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his guilty plea to wire fraud, in violation
of 18 U.S.C.A. § 1343 (West Supp. 2012), the district court
sentenced Terry Scott Hyder to eighty-four months’ imprisonment,
which reflected a twenty-one-month variance above Hyder’s
advisory Guidelines range. On appeal, Hyder challenges the
substantive reasonableness of this sentence. For the reasons
that follow, we affirm.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.),
cert. denied, 81 U.S.L.W. 3164 (U.S. Oct. 1, 2012) (No. 11-
10786); see Gall v. United States, 552 U.S. 38, 51 (2007). When
evaluating a sentence for substantive reasonableness, we
consider whether the sentencing court abused its discretion in
concluding that the relevant 18 U.S.C. § 3553(a) (2006)
sentencing factors supported the selected sentence “and
justified a substantial deviation from the Guidelines range.”
Gall, 552 U.S. at 56.
When the district court imposes a departure or
variance sentence, “we consider whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
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from the sentencing range.” United States v. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). The district
court “has flexibility in fashioning a sentence outside of the
Guidelines range,” and need only “‘set forth enough to satisfy
the appellate court that it has considered the parties’
arguments and has a reasoned basis’” for its decision. United
States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.) (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)) (alteration
omitted), cert. denied, 131 S. Ct. 2946 (2011).
We discern no abuse of discretion in the district
court’s decision to vary upward from Hyder’s advisory Guidelines
range to impose an eighty-four-month sentence. Having sustained
one of Hyder’s objections to the calculation of his advisory
Guidelines range, Hyder’s revised sentencing range was 51-63
months’ imprisonment. The district court first opined that this
range did not adequately reflect the seriousness of the offense.
Specifically, Hyder’s scheme defrauded multiple victims of more
than $775,000. Four of Hyder’s victims were over the age of
seventy, and the youngest victims were in their mid-fifties.
Also supporting the upward variance was the fact that the
conduct underlying this offense was very similar to that
involved in Hyder’s prior federal mail fraud conviction. The
court was also vexed by the fact that Hyder was serving his term
of supervised release for the mail fraud offense during the
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instant offense conduct. Thus, the court surmised, the fifty-
six-month sentence Hyder received on the mail fraud conviction
did not have a sufficient deterrent effect and a longer period
of incarceration was necessary to adequately deter Hyder from
future fraudulent conduct and to protect the public.
In summary, the district court concluded that a
eighty-four-month sentence was necessary pursuant to the
relevant § 3553(a) factors, which included the seriousness of
the offense, § 3553(a)(2)(A); the history and characteristics of
the defendant, § 3553(a)(1); and the need to both protect the
public and deter future criminal conduct. 18 U.S.C.
§ 3553(a)(2)(B), (C). Because the district court amply
justified both its variance decision and the extent thereof, we
conclude there was no abuse of discretion.
Hyder contends that the district court’s reliance on
these sentencing factors was unreasonable, though, because they
were already accounted for in the calculation of his advisory
Guidelines range. We disagree. As the Fifth Circuit has
explained, post-Booker * Supreme Court precedent permits a
sentencing court to “rely upon factors already incorporated by
the Guidelines to support a non-Guidelines sentence.” United
States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008) (citing
*
United States v. Booker, 543 U.S. 220 (2005).
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United States v. Williams, 517 F.3d 801, 810-11 & n.5 (5th Cir.
2008)); accord United States v. Williams, 526 F.3d 1312, 1323–24
(11th Cir. 2008).
For these reasons, we affirm the criminal judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument would not aid the decisional process.
AFFIRMED
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