United States v. Tinsley ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4223
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ZACHARY B. TINSLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-000999-HEH)
Argued: December 1, 2006 Decided: May 1, 2007
Before MOTZ and TRAXLER, Circuit Judges, and David A. FABER, Chief
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: Carolyn Virginia Grady, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Matthew Childs Ackley, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Acting Federal
Public Defender, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Zachary Tinsley was convicted of unlawful possession of a
firearm by a felon. See 18 U.S.C.A. § 922(g)(1) (West 2000).
Under the Sentencing Guidelines, the advisory sentencing range was
33-41 months. The district court granted the government’s motion
for an upward departure and sentenced Tinsley to 120 months.
Tinsley appeals, challenging his sentence and conviction. For the
reasons set forth below, we affirm Tinsley’s conviction, but we
vacate his sentence and remand for re-sentencing.
I.
Police officers in Richmond, Virginia, stopped a car
registered to Tinsley, for whom there was an outstanding arrest
warrant. Tinsley was driving the car, and Darryl Payne was in the
passenger seat. Once Tinsley was out of the car and handcuffed, an
officer told Tinsley that he was going to search the car. Tinsley
became agitated and said, “You can’t search the car. You have no
right to search the car.” J.A. 45. Tinsley then told Payne, who
was still near the car, to lock the car and not to let the police
search the car. The search proceeded despite Tinsley’s
objections, and a loaded .25 caliber pistol was found in the glove
box. While Tinsley was in the police station awaiting processing,
Tinsley began talking to himself in a way that the attending police
officer believed he was supposed to overhear. Tinsley mumbled, “He
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was sitting closest to the gun. Who could reach the gun the
easiest? . . . I can’t believe my nephew would set me up like
that.” J.A. 55.
Payne (the passenger) reluctantly testified for the government
at trial. He said that while he is not related to Tinsley, he
considers Tinsley to be his uncle. Although Payne did not testify
that the gun belonged to Tinsley, Payne did say that he did not own
the car, that the gun was not his, and that he had not put it in
the glove box. On cross-examination, counsel for the defense
established that Payne was a heroin addict and that Payne had, just
before he testified against Tinsley, pleaded guilty to a felony
concealed weapons charge. The jury found Tinsley guilty of being
a felon in possession of a firearm.
The presentence report (“PSR”) prepared for Tinsley’s
sentencing detailed Tinsley’s criminal record, which included
multiple drug and weapons charges. Four convictions (including two
firearms charges) that Tinsley had committed were not counted
because the convictions were too old, and the PSR mentioned ten
arrests that did not result in convictions. Because Tinsley
committed the instant offense while he was on probation and within
two years of release from a prior term of imprisonment, he received
three additional criminal history points. His countable criminal
record, along with the additional points, gave Tinsley a category
V criminal history, with 12 criminal history points. With a base
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offense level of 14, Tinsley’s advisory sentencing range was 33-41
months.
The government moved for an upward departure, asking the
district court to increase the offense level and criminal history
category. The district court granted the motion, concluding that
even though Tinsley did not qualify as a career offender under the
Guidelines, his criminal history score substantially under-
represented the extent of Tinsley’s criminal activity and the
likelihood that he would re-offend. Concluding that Tinsley was a
de facto career criminal, the district court increased Tinsley’s
criminal history to category VI. The court stated that “if there
is ever someone who warrants the maximum sentence, it is Mr.
Tinsley,” J.A. 186-87, and the court determined that an upward
departure of 10 offense levels was warranted. Tinsley’s new
offense level of 24 and category VI criminal history yielded a
sentencing range of 100-125 months. The court then imposed a
sentence of 120 months, the statutory maximum.
II.
On appeal, Tinsley first challenges the sufficiency of the
government’s evidence. “A defendant challenging the sufficiency of
the evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). “In reviewing the sufficiency
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of the evidence . . ., our role is limited to considering whether
there is substantial evidence, taking the view most favorable to
the Government, to support it.” Id. (internal quotation marks
omitted). “[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc).
A conviction under § 922(g)(1) requires the government to
establish that “(1) the defendant previously had been convicted of
a crime punishable by a term of imprisonment exceeding one year;
(2) the defendant knowingly possessed, transported, shipped, or
received, the firearm; and (3) the possession was in or affecting
commerce.” United States v. Langley, 62 F.3d 602, 606 (4th Cir.
1995) (en banc). Possession may be actual, constructive, or joint.
See United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir.
2001).
On appeal, Tinsley contends that the government failed to
prove possession. He argues that there was no evidence that he was
in actual possession of the firearm and that the circumstantial
evidence of constructive possession was, at most, equally
suggestive of possession by Tinsley or Payne, given that the gun
was in the glove box and was thus most accessible to Payne. Citing
United States v. Sanchez, 961 F.2d 1169 (5th Cir. 1992), Tinsley
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contends that we must reverse his conviction. See id. at 1173 (“If
the evidence viewed in the light most favorable to the prosecution
gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence of the crime charged, this court
must reverse the convictions.” (internal quotation marks omitted)).
We disagree.
“A person has constructive possession over contraband when he
has ownership, dominion, or control over the contraband itself or
over the premises or vehicle in which it was concealed.” United
States v. Armstrong, 187 F.3d 392, 396 (4th Cir. 1999). In this
case, the car in which the gun was found was registered to Tinsley,
and Tinsley was driving it when the gun was found. The jury was
thus entitled to conclude that Tinsley had dominion and control
over the car. In addition, Tinsley became highly agitated when the
police told him that they were going to search the car, which
suggests that Tinsley knew there was something in the car that he
did not want the police to find. And most importantly, Payne
testified at trial that the gun did not belong to him and that he
did not put the gun in the car. In our view, this evidence was
more than sufficient to permit the jury to conclude that the gun
belonged to Tinsley rather than Payne. Accordingly, we reject
Tinsley’s challenge to his conviction.
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III.
We turn now to Tinsley’s challenges to the ten-year sentence
imposed by the district court. Sentencing in the post-Booker1
world is a multi-step procedure. The district court first must
correctly calculate the sentencing range prescribed by the
Guidelines. See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). The court must then consider whether this advisory
sentencing range “serves the factors set forth in § 3553(a)”; if
the sentence does not serve the § 3553(a) factors, the court must
“select a sentence that does serve those factors.” United States
v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006). When selecting a sentence that serves the purposes of
§ 3553(a), the district court must consider
whether a departure is appropriate based on the
Guidelines Manual or relevant case law. . . . If an
appropriate basis for departure exists, the district
court may depart. If the resulting departure range still
does not serve the factors set forth in § 3553(a), the
court may then elect to impose a non-guideline sentence.
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006).
We review a post-Booker sentence for reasonableness, which
includes procedural and substantive components. “A sentence may be
procedurally unreasonable . . . if the district court provides an
inadequate statement of reasons or fails to make a necessary
1
United States v. Booker, 543 U.S. 220 (2005).
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factual finding. A sentence may be substantively unreasonable if
the court relies on an improper factor or rejects policies
articulated by Congress or the Sentencing Commission.” Id. at 434.
“When we review a sentence outside the advisory guideline range--
whether as a product of a departure or a variance--we consider both
whether the district court acted reasonably with respect to its
decision to impose such a sentence and with respect to the extent
of the divergence from the guideline range.” United States v.
Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006).
The district court at sentencing concluded that Tinsley’s
criminal history category “substantially underrepresents the extent
of his criminal activity and the likelihood of reoffending.” J.A.
186. And although Tinsley was ineligible for sentencing as a
career criminal, the district court believed that Tinsley was a “de
facto” career criminal. The court raised Tinsley’s criminal
history to category VI and his offense level from 14 to 24, changes
that increased Tinsley’s advisory sentencing range from 33-41
months to 100-125 months. The court then sentenced Tinsley to 120
months imprisonment.
On appeal, Tinsley raises several challenges to his sentence.
Tinsley first contends that the district court erred in its
approach to the departure. Tinsley argues that after increasing
his criminal history category, the district court should have moved
sequentially through each higher offense level, considering the
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sentence called for at each level and moving on to the next higher
offense level only after explaining why that sentence was
inadequate.
If a district court concludes that an upward departure is
required for a defendant with a category VI criminal history, the
Sentencing Guidelines require the court to “structure the departure
by moving incrementally down the sentencing table to the next
higher offense level in Criminal History Category VI until it finds
a guideline range appropriate to the case.” U.S.S.G. §
4A1.3(a)(4)(B). Thus, the sentencing court should “move to
successively higher categories only upon finding that the prior
category does not provide a sentence that adequately reflects the
seriousness of the defendant’s criminal conduct.” United States v.
Cash, 983 F.2d 558, 561 (4th Cir. 1992).
Tinsley contends that the requirements of § 4A1.3(a)(4)(B)
became applicable once the district court moved him into criminal
history category VI. Tinsley argues that resentencing is required
because the district court failed to move incrementally down the
sentencing table. See, e.g., Green, 436 F.3d at 457 (explaining
that if a “sentence is based on an error in construing or applying
the Guidelines, it will be found unreasonable and vacated”).
The district court in this case did not move incrementally
down the sentencing table when imposing sentence. The court stated
that it believed that Tinsley’s criminal history score
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“substantially underrepresents the extent of [Tinsley’s] criminal
activity and the likelihood of reoffending.” J.A. 186. The court
moved Tinsley into criminal history category VI and thereafter did
not explicitly consider any of the intervening offense levels.
Instead, the court simply announced its view that a “departure of
ten . . . levels is appropriate.” J.A. 205. Although the
Guidelines’ “mandate to depart incrementally does not . . . require
a sentencing judge to move only one level, or to explain its
rejection of each and every intervening level,” United States v.
Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (internal quotation marks
omitted), the district court’s approach falls well short of that
required by § 4A1.3(a)(4)(B) and Cash. See id. at 200 (concluding
that district court’s statement that it “‘considered lesser offense
levels and found them to be inadequate’” did not satisfy the
requirements of § 4A1.3 and remanding for resentencing).
It is not entirely certain, however, that § 4A1.3(a)(4)(B) is
directly applicable to this case, given that Tinsley’s criminal
history score originally placed him in category V rather than
category VI. Nonetheless, even assuming that § 4A1.3(a)(4)(B) is
not strictly applicable, the district court’s failure to move
incrementally down the sentencing table and to explain why the
intervening offense levels did not yield an sufficient sentence is
relevant to another of Tinsley’s challenges to his sentence--that
the district court’s explanation of the sentence is inadequate.
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After Booker, a sentencing court must explain the reasons
behind the sentence it imposes, “particularly explaining any
departure or variance from the guideline range. The explanation of
a variance sentence must be tied to the factors set forth in §
3553(a) and must be accompanied by findings of fact as necessary.”
Moreland, 437 F.3d at 432. “Generally, if the reasons justifying
the variance are tied to § 3553(a) and are plausible, the sentence
will be deemed reasonable.” Id. at 434. “However, when the
variance is a substantial one . . ., we must more carefully
scrutinize the reasoning offered by the district court in support
of the sentence. The farther the court diverges from the advisory
guideline range, the more compelling the reasons for the divergence
must be.” Id.
In this case, the sentence imposed by the district court is
nearly three times the high end of Tinsley’s advisory sentencing
range. The district court’s explanation of the sentence, however,
fails to set out compelling reasons justifying such a substantial
departure from the advisory sentencing range.
The district court’s explanation for its sentence focused
almost exclusively on Tinsley’s “terrible” criminal record. J.A.
190. Tinsley’s record included seven felony convictions, plus
multiple misdemeanors, and there were several convictions that had
not been included in the Guidelines calculation. Five of Tinsley’s
prior convictions were for firearms offenses, and the district
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court noted that Tinsley had repeatedly violated the terms of his
probation, parole, and supervised release. Given Tinsley’s
extensive criminal past, the district court reasonably concluded
that an upward departure was warranted. That Tinsley has a bad
criminal record, however, does little to distinguish Tinsley from
other defendants with a category VI criminal history, and the mere
fact of Tinsley’s bad record, standing alone, does not serve as an
adequate explanation of how the district court selected the 120-
month sentence from the range of sentencing options available.
Because the district court failed to proceed incrementally down the
sentencing table, as required by § 4A1.3(a)(4)(B), or otherwise
explain why it settled on a sentence of 120 months, the court’s
explanation of the sentence does not provide us with a basis for
reviewing the reasonableness of the particular sentence imposed by
the court. Accordingly, we must vacate Tinsley’s sentence and
remand for resentencing with “a more rigorous sentencing analysis.”
Dalton, 477 F.3d at 200; see United States v. Hampton, 441 F.3d
284, 288-89 (4th Cir. 2006) (finding explanation of sentence
substantially below the advisory range to be inadequate where “the
court did not explain how this variance sentence better served the
competing interests of § 3553(a) than the guidelines sentence
would”).2
2
Given our disposition of these issues, we need not address
Tinsley’s other challenges to his sentence. As to Tinsley’s claim
that the 120-month sentence imposed by the distict court is
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IV.
Accordingly, for the foregoing reasons, we hereby affirm
Tinsley’s conviction. However, we vacate Tinsley’s sentence and
remand for further proceedings consistent with this opinion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
unreasonably long, we note only that we have rejected similar
sentences in cases involving defendants with extensive criminal
records. See United States v. Davenport, 445 F.3d 366, 372 (4th
Cir. 2006) (finding unreasonable a sentence of 120 months where
advisory sentencing range was 30-37 months and defendant had more
than twice the number of criminal history points needed to place
him in category VI); see also United States v. Tucker, 473 F.3d
556, 564-65 (4th Cir. 2007) (in case where advisory sentencing
range was 24-30 months, finding sentence of 144 months to be
excessive notwithstanding district court’s reasonable belief that
the defendant, who was before the court on her third conviction for
embezzling from an employer, was highly likely to re-offend). The
district court on remand should give due consideration to these
cases when imposing and explaining Tinsley’s sentence.
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