United States v. Dillon , 355 F. App'x 732 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4584
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY BERNARD DILLON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:04-cr-00456-WDQ-1)
Argued: October 30, 2009 Decided: December 9, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Vacated and remanded for resentencing by unpublished per curiam
opinion.
ARGUED: Gary Allen Ticknor, Elkridge, Maryland, for Appellant.
Judson T. Mihok, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Bernard Dillon pled guilty, pursuant to a written
plea agreement, to fraudulent use of an access device in
violation of 18 U.S.C. § 1029(a)(5). Dillon’s advisory
Guidelines range was calculated at 30 to 37 months’
imprisonment, but the district court departed upward sentencing
him to 87 months of incarceration. On appeal, we vacated and
remanded the sentence based on several procedural errors at
Dillon’s first sentencing hearing. See United States v. Dillon,
251 Fed. Appx. 171, 173 (4th Cir. 2007) (unpublished). At
resentencing, the district court again deviated upward from the
suggested Guidelines range, this time imposing an 84-month
sentence. Dillon now raises several issues related to the
procedural reasonableness in the imposition of his sentence. We
exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291. For the reasons set forth below, we again vacate
Dillon’s sentence and remand to the district court for
resentencing.
2
I.
The Presentence Investigation Report (“PSR”) in this case
placed Dillon’s base-offense level at 6. 1 After incorporating 2-
level increases for causing a loss exceeding $5,000, having 10
or more victims, stealing from a person, and using sophisticated
means, as well as a 2-level reduction for acceptance of
responsibility, the PSR established an adjusted-offense level of
12. In combination with a criminal history category of VI, the
PSR yielded a suggested Guidelines range of 30 to 37 months’
imprisonment. The PSR did not list any grounds for an upward
departure from the advisory Guidelines range.
At the first sentencing proceeding, Dillon and the
Government requested the district court impose a sentence within
the suggested Guidelines range. 2 The district court declined to
do so because of Dillon’s extensive criminal history:
You have, by my count, and discounting the drug
conviction, 23 convictions in seven different states:
Minnesota, Indiana, Florida, Ohio, Illinois, Texas,
New York. You’ve used 29 aliases in your career, and
although it is common, I suppose, these things, in
theft cases, your case is an extraordinary one, in the
geographic range of your theft activities, and over
1
Dillon pled guilty to credit card fraud in violation of 18
U.S.C. § 1029(a)(5) after authorities located stolen credit and
bank cards, counterfeiting materials, and various stolen goods
and identification documents in his possession.
2
Dillon’s plea agreement obligated the Government to
recommend a sentence within the advisory Guidelines range.
3
the period of time, you have convictions at the age of
18, 19, 21, 22, 24, 25, 26, 29, 30, 33, 36, 38, 39,
each of these ages you’ve got convictions and some
years multiple convictions, and I note that this
offense was done when you were on parole for a robbery
offense.
Joint Appendix (“J.A.”) at 51.
Dillon’s “appalling record” prompted the district court to
conclude that an extended term of imprisonment was necessary to
protect the public and to give Dillon the chance “to make
preparations in some fashion for a non criminal career.” Id. at
51-52. The district court then determined that to accomplish
that goal it would make an upward departure under the Guidelines
from a criminal history category VI, offense level 12. The
court did not specifically reference U.S.S.G. § 4A1.3(a), but
stated: “I am going to depart upward in the advisory
[G]uidelines to sentence you at a Criminal History VI and
offense level 22. I’m going to impose a sentence at the bottom
of those [G]uidelines; that is an 87-month sentence. That’s a
seven-year sentence.” 3 Id. at 53.
3
There is some confusion as to whether the district court
originally intended to impose a sentence of 84 or 87 months. As
we explained in our first opinion in this case, the district
court’s “orally pronounced sentence was eighty-seven months” and
“the orally pronounced sentence controls.” Dillon, 251 Fed.
Appx. at 172 n.1; see also United States v. Morse, 344 F.2d 27,
29 n.1 (4th Cir. 1965).
4
On appeal, Dillon argued the district court erred in
departing upward without providing prior notice, or following
the “incremental approach” mandated by both § 4A1.3(a)(4)(B) and
our precedent. See Dillon, 251 Fed. Appx. at 172-73. We held
that the district court “adequately stated its reasons for
departing pursuant to § 4A1.3” and that “the departure was based
on proper factors.” Id. at 173.
However, we vacated Dillon’s sentence because the district
court failed to provide “either the incremental analysis
required by § 4A1.3 or the extensive justification required by
dramatic departures.” Id. (quotations omitted). On remand, we
stated the district court “should explain why category VI is
inadequate, and ‘move incrementally down the sentencing table to
the next higher offense level until it [found] a guideline range
appropriate to the case.’” Id. (quoting U.S.S.G.
§ 4A1.3(a)(4)(B)). We provided this stipulation because the
district court “said nothing about how it determined the extent
of the departure.” 4 Id.
4
We also held that the district court erred in failing to
give Dillon notice of its intent to depart from the suggested
Guidelines range before it imposed sentence. See Dillon, 251
Fed. Appx. at 172-73; see also Fed. R. Crim. P. 32(h). Dillon
does not raise any notice issue in the instant appeal and we
consider none. See also Irizarry v. United States, 128 S. Ct.
2198, 2201-02 (2008).
5
Upon remand, Dillon’s second sentencing proceeding
commenced after the Supreme Court issued its decision in Gall v.
United States, 552 U.S. 38 (2007). The district court initially
opined that, after Gall, “some of the considerations” we relied
upon in remanding Dillon’s case for resentencing were “perhaps
no longer operative.” J.A. at 64. Then, the court reaffirmed
its sentence was a departure under the Guidelines and noted the
Fourth Circuit had confirmed that “I adequately stated the
reasons for departing and the departure was based on proper
factors; however, there is some disagreement on the part of the
Fourth Circuit with the degree or the magnitude of the
departure.” Id. at 65. Despite the direction of our mandate,
the district court never mentioned U.S.S.G. § 4A1.3(a) or
described an upward departure analysis under that section. The
district court’ sentence and rationale was the following:
I think, in reanalyzing the case under Gall, I come
out the same place where I was when I imposed the
original sentence; that is, Mr. Dillon, I commit you
to serve a term of imprisonment of 84 months with the
remaining conditions as imposed, and I do that in
light of the numerous convictions in numerous
jurisdictions which I detailed at the original
sentencing, which was noted by the Court of Appeals in
its decision. I incorporate from that original
sentencing my reasoning.
Id.
6
II.
Under Gall, we review all sentences for reasonableness
under a “deferential abuse-of-discretion standard,” regardless
of whether the sentence selected by the district court is
“inside, just outside, or significantly outside” the suggested
Guidelines range. Gall, 552 U.S. at 41. Appellate review under
this standard encompasses a procedural and a substantive
component. See United States v. Heath, 559 F.3d 263, 266 (4th
Cir. 2009).
To ensure a sentence is procedurally reasonable, we inquire
whether the district court followed the correct path in reaching
its selected sentence. Significant deviations from this path,
“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
from the Guidelines range,” require resentencing. Gall, 552
U.S. at 51. Compliance with these procedural requirements is
important because they ensure the district court gives “serious
consideration to the extent of any departure from the
Guidelines,” which are “the product of careful study based on
extensive empirical evidence derived from the review of
thousands of individual sentencing decisions.” Id. at 46. Only
7
if a sentence is procedurally reasonable do we proceed to
consider the substantive reasonableness of the district court’s
chosen sentence. See United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009).
III.
In this appeal, Dillon argues that his 84-month sentence is
procedurally unreasonable because the district court effected a
10-level Guidelines departure without employing the “incremental
approach” established by § 4A1.3(a)(4)(B) and did not follow the
mandate of this Court as we instructed on remand. Thus, Dillon
maintains his sentence should be vacated as procedurally
unreasonable and that he is entitled to a new sentencing
hearing. 5
5
Dillon makes the alternative argument on appeal that even
if the district court varied from the Guidelines at his second
sentencing proceeding under the factors laid out in 18
U.S.C. § 3553(a), the district court did not sufficiently
explain how it reached its chosen sentence. Because we vacate
the sentence on other grounds, we do not address this
contention. Dillon also argues that at least one of the
district court’s reasons for departing upward from the suggested
Guidelines range is not supported by the record. Again, because
we remand for resentencing on other grounds, we do not address
this argument on appeal. See United States v. Passaro, 577 F.3d
207, 223 (4th Cir. 2009). Nothing in our decision should be
construed to prevent Dillon from presenting these arguments to
the district court on remand. See id.8
A.
The “same facts and analyses” may support “a Guidelines
departure and a variance,” but these concepts remain “distinct”
even after the Supreme Court’s decision in Gall. United States
v. Grams, 566 F.3d 683, 687 (6th Cir. 2009). Indeed, the
Supreme Court explained in Irizarry v. United States, 128 S. Ct.
2198 (2008) that a “[d]eparture” is a “term of art” that refers
to a non-Guidelines sentence “imposed under the framework set
out in the Guidelines.” 128 S. Ct. at 2202. A “variance[],” in
contrast, denotes a non-Guidelines sentence reached under the
factors laid out in “18 U.S.C. § 3553(a).” Id. at 2203.
Whether the district court chooses to depart or vary from
the suggested Guidelines range has “real consequences for an
appellate court’s review.” United States v. Brown, 578 F.3d
221, 226 (3d Cir. 2009). The Supreme Court in Irizarry, for
example, held that Federal Rule of Criminal Procedure 32(h)’s
notice requirement applies to departures, but not to variances. 6
See Irizarry, 128 S. Ct. at 2201-02. Furthermore, the
“permissible factors justifying traditional departures differ
6
Rule 32(h) requires the district court to give “the
parties reasonable notice” if it intends to depart on a “ground
not identified for departure either in the presentence report or
in a party’s prehearing submission.” Fed. R. Crim. P. 32(h).
The notice rendered under this section “must specify any ground
on which the court is contemplating a departure.” Id.9
from — and are more limited than — the factors a court may look
to in order to justify a post-Booker variance.” United States
v. Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006); see also
United States v. Chase, 560 F.3d 828, 830 (8th Cir. 20009);
United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir. 2008).
Because departures are thus “subject to different requirements
than variances,” United States v. Floyd, 499 F.3d 308, 311 (3d
Cir. 2007), it is important for district courts to “‘articulate
whether a sentence is a departure or a variance from an advisory
Guidelines range.’” Brown, 578 F.3d at 226 (quoting United
States v. Vampire Nation, 451 F.3d 189, 198 (3d Cir. 2006)). 7
The district court’s intention to effect a departure at
Dillon’s initial sentencing proceeding is not in doubt, as the
court explained that it would “depart upward in the advisory
[G]uidelines to sentence [Dillon] at a Criminal History
[Category of] VI and offense level [of] 22” — not the offense
level of 12 contained in the PSR. J.A. at 53. On remand, the
district court gave no indication that it intended to sentence
Dillon other than by the same upward departure. The court noted
that “I adequately stated the reasons for departing and the
7
See Grams, 566 F.3d at 688 (remanding for resentencing
based, in part, on the district court’s failure to explain
whether it departed or varied from the defendant’s suggested
Guidelines range).
10
departure was based on proper factors . . . and I incorporate
from that original sentencing my reasoning.” Id. at 65
(emphasis added). The district court relied almost exclusively
on its prior departure analysis in sentencing Dillon to 84
months’ imprisonment. Thus, it is clear Dillon’s current
sentence is based on a Guidelines departure.
B.
Having confirmed that Dillon’s 84-month sentence
constitutes a departure by the district court from the
Guidelines range, we now turn to Dillon’s contention that the
district court erred in failing to follow the “incremental
approach” under U.S.S.G. § 4A1.3(a)(4)(B) as our precedent for
upward departures from a criminal history category VI indicates
and as our mandate directed. The “extent” of an upward
departure under § 4A1.3 is generally determined by reference to
the criminal history category that “most closely resembles that
of the defendant’s.” U.S.S.G. § 4A1.3(a)(4)(A). But a
different procedure is required where, as here, the defendant
already possesses a criminal history category of VI — the
maximum criminal history category established by the Guidelines.
In that case, the Guidelines instruct the district court to move
“incrementally down the sentencing table to the next higher
11
offense level in Criminal History Category VI until it finds a
guideline range appropriate to the case.” Id. § 4A1.3(a)(4)(B).
The district court, however, appeared to believe that the
Supreme Court’s decision in Gall obviated the need for it to
follow the incremental procedure required by § 4A1.3(a)(4)(B),
our precedent, and the mandate when sentencing based on an
upward departure. This conclusion was in error.
In Gall, the Supreme Court addressed a variance imposed
under the factors laid out in § 3553(a), not a departure
conducted pursuant to the Guidelines. 8 See United States v.
Autery, 555 F.3d 864, 872 n.7 (9th Cir. 2009). Our precedent
relating to the proper procedures for executing Guidelines
departures when that is the procedure utilized by the district
court remains unaltered by the Supreme Court’s decision in
Booker and subsequent sentencing cases. See, e.g., United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007); United
States v. Rusher, 966 F.2d 868, 885 (4th Cir. 1992). As the
Tenth Circuit explained, “[w]hile Booker made application of the
8
See Gall, 552 U.S. at 56 (“The Court of Appeals gave
virtually no deference to the District Court's decision that the
§ 3553(a) factors justified a significant variance in this
case.”); id. at 59-60 (“[I]t is not for the Court of Appeals to
decide de novo whether the justification for a variance is
sufficient . . . . On abuse-of-discretion review, the Court of
Appeals should have given due deference to the District Court's
. . . decision that the § 3553(a) factors, on the whole,
justified the sentence.”).
12
sentencing [G]uidelines advisory rather [than] mandatory, it did
not impact pre-existing law concerning the interpretation of any
sentencing guideline or expand the availability of departures
under the sentencing [G]uidelines.” United States v. Beltran,
571 F.3d 1013, 1019 (10th Cir. 2009). Thus, when a district
court proceeds to impose a sentence based on the Guidelines, it
must correctly follow the Guidelines to avoid an error of
procedural unreasonableness.
The Supreme Court’s sentencing cases simply establish that
district courts have the “discretion to vary from the
[Guidelines] range if a variance” is appropriate under 18 U.S.C.
§ 3553(a). 9 Id. We discussed the Supreme Court’s recent
development of non-Guidelines methods for deviating from the
Guidelines range in United States v. Evans, 526 F.3d 155 (4th
Cir. 2008), in which we explained:
Gall and Rita . . . firmly establish that
although adherence to the advisory Guidelines
departure provisions provides one way for a district
court to fashion a reasonable sentence outside the
Guidelines range, it is not the only way. Rather,
after calculating the correct Guidelines range, if the
district court determines that a sentence outside that
range is appropriate, it may base its sentence on the
9
Cf. United States v. Lofink, 564 F.3d 232, 240 n.17 (3d
Cir. 2009) (“The Supreme Court has given wide latitude to
district courts to vary from the Guidelines range under
§ 3553(a) . . . . But it has not extended that latitude to a
district court’s procedure for determining the advisory
Guidelines range.”).
13
Guidelines departure provisions or on other factors
[i.e., the 18 U.S.C. § 3553(a) factors] so long as it
provides adequate justification for the deviation.
526 F.3d at 164. Because the district court in this case chose
to make its sentence for Dillon as an upward departure under the
Guidelines, not a variance or other factor as allowed by the
Supreme Court’s recent cases, the traditional rules for
Guidelines departures continued to apply.
The district court thus procedurally erred in failing to
conduct the “incremental analysis” required for departures
beyond a criminal history category of VI. We do not “require a
sentencing judge to move only one” offense level at a time,
rejecting “each and every intervening level” in turn. Dalton,
477 F.3d at 199 (quotations omitted). We do, however, require
the district court to adequately explain its decision to deviate
from the Guidelines range and the applicable Guidelines
requirements like U.S.S.G. § 4A1.3(a)(4). See United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). In
other words, the district court “must expressly articulate not
only the legal and factual reasons for a departure, but also the
logical foundation for the degree of departure selected.”
United States v. Robertson, 568 F.3d 1203, 1214 (10th Cir.
2009). Furthermore, the district court should tie its rationale
for the extent of a particular departure to the Guidelines’
14
“existing structure.” See United States v. Cash, 983 F.2d 558,
561 (4th Cir. 1992); see also U.S.S.G. § 4A1.3(a)(4).
Moreover, the district court was not free to ignore our
mandate. As noted above, its view that Gall voided the mandate
as to following U.S.S.G. § 4A1.3(a)(4)(B) was incorrect under
the facts of this case. Accordingly, as our precedent clearly
holds, the district court was required to follow the direction
of our mandate upon remand. 10 See, e.g., Invention Submission
Corp. v. Dudas, 413 F.3d 411, 414-15 (4th Cir. 2005).
The district court sufficiently explained the legal and
factual bases for its decision to depart, see Dillon, 251 Fed.
Appx. at 173, as we frequently approve upward deviations from
the suggested Guidelines range based on a defendant’s
intransigent recidivism. See, e.g., Heath, 559 F.3d at 268;
Evans, 526 F.3d at 163-64. But a district court does not
fulfill its “explanatory duty merely by stating the bases for
the departure;” it must also disclose its “reasons for the
sentence actually imposed.” Robertson, 548 F.3d at 1214-15; see
also United States v. Moreland, 437 F.3d 424, 432 (4th Cir.
10
To the extent our prior decision directed the district
court to provide an “extensive justification required by
dramatic departures,” Dillon, Fed. Appx. at 173, that
proposition was negated by Gall. See 542 U.S. at 47 (“We reject
. . . an appellate rule that requires ‘extraordinary’
circumstances to justify a sentence outside the Guidelines
range.”).
15
2006). Because the district court chose to base the sentence on
a Guidelines upward departure, it was necessary, as a matter of
procedural reasonableness, that the district court follow the
Guidelines’ existing structure as required by § 4A1.3 and our
precedent. “It is axiomatic that a district court commits
reversible procedural error when it fails to explain a departure
or variance.” United States v. Passaro, 577 F.3d 207, 223 (4th
Cir. 2009).
We, therefore, vacate Dillon’s sentence and remand for
resentencing. See United States v. Perez-Pena, 453 F.3d 236,
241 (4th Cir. 2006). In resentencing, the district court should
explain why category VI, offense level 12 is inadequate, “moving
incrementally down the sentencing table to the next higher
offense level in . . . [c]ategory VI until it finds a guideline
range appropriate to the case.” U.S.S.G. § 4A1.3(a)(4)(B); see
also Dalton, 477 F.3d at 200 n.3.
VACATED AND REMANDED FOR RESENTENCING
16