United States v. Godwin ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOYCE KAY GODWIN, a/k/a Joyce Kay Atkins,
a/k/a Brenda Kay Adkins, a/k/a Joyce Ann
Lowrance, a/k/a Joyce Ann Cox,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00211)
Submitted: July 20, 2007 Decided: August 9, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Thomas Cullen, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joyce Kay Godwin pled guilty to one count of conspiracy
to commit offenses against the United States, in violation of 18
U.S.C. § 371 (2000), two counts of uttering counterfeit and forged
securities and aiding and abetting such conduct, in violation of 18
U.S.C. §§ 2, 513 (2000), two counts of aggravated identity theft
and aiding and abetting such conduct, in violation of 18 U.S.C.
§§ 2, 1028(A) (West 2000 & Supp. 2007) and two counts of bank fraud
and aiding and abetting such fraud, in violation of 18 U.S.C. §§ 2,
1344 (2000). On appeal, Godwin claims that the district court
erred in sentencing her under the sentencing guidelines, that it
did not make sufficient findings of fact with respect to sentencing
factors, that it erred not considering whether to impose concurrent
or consecutive sentences on the two aggravated identity theft
convictions and that the district court erred not giving her the
opportunity to allocute at sentencing. We find the district court
plainly erred in not considering certain factors under the
sentencing guidelines prior to ordering sentences consecutive to
each other on the aggravated identity theft convictions. We
further find the court plainly erred in not allowing Godwin to
allocute. Accordingly, we affirm the convictions and vacate the
sentence and remand for resentencing.
At sentencing, Godwin challenged enhancements for her
role in the offense, the intended loss for which she was held
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responsible and the number of victims. The district court cited
its reliance on affidavits and information contained in the
presentence investigation report and rejected Godwin’s arguments.
The court imposed a concurrent sentence within the advisory
guidelines on most of the counts and imposed consecutive sentences
on the aggravated identity theft convictions.
We find the district court did not err in determining the
range of imprisonment under the sentencing guidelines and imposing
a sentence within the guidelines. Merely because our review of a
sentence is for reasonableness and we presume sentences within the
guidelines are reasonable, does not mean that the guidelines are
mandatory as opposed to advisory. See Rita v. United States, 127
S. Ct. 2456, 2462 (2007); United States v. Moreland, 437 F.3d 424,
433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
We further find the district court made sufficient
findings of fact prior to rejecting Godwin’s challenge to the
sentencing enhancements for her role in the offense and the amount
of intended loss.
However, we find the district court plainly erred
imposing consecutive sentences under the two aggravated identity
theft conviction without consulting the guidelines. Under 18
U.S.C.A. § 1028A(b)(4) (West Supp. 2007), if a defendant has more
than one conviction under § 1028A, the court may, in its
discretion, run the sentences concurrently with each other, in
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whole or in part. The court’s discretion is informed by the
guidelines and policy statements. The district court was required
to refer to the commentary for U.S. Sentencing Guidelines
Manual § 5G1.2 (2005) for guidance regarding the imposition of
sentences under the two counts. See USSG § 2B1.6, cmt. n.1. Under
USSG § 5G1.2, cmt. n.2(B), courts are instructed to consider the
following non-exhaustive list of factors prior to imposing
sentences on multiple aggravated identity theft convictions:
(i) The nature and seriousness of the
underlying offenses. For example, the court
should consider the appropriateness of
imposing consecutive, or partially
consecutive, terms of imprisonment for
multiple counts of 18 U.S.C. § 1028A in a case
in which an underlying offense for one of the
18 U.S.C. § 1028A offenses is a crime of
violence or an offense enumerated in 18
U.S.C. § 2332b(g)(5)(B);
(ii) Whether the underlying offenses are
groupable under § 3D1.2 (Groups of Closely
Related Counts). Generally, multiple counts of
18 U.S.C. § 1028A should run concurrently with
one another in cases in which the underlying
offenses are groupable under § 3D1.2;
(iii) Whether the purposes of sentencing set
forth in 18 U.S.C. § 3553(a)(2) are better
achieved by imposing a concurrent or a
consecutive sentence for multiple counts of 18
U.S.C. § 1028A.
Because it appears from the record that the district
court did not consider these factors, we find plain error, vacate
the sentence and remand for resentencing.
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Godwin also claims the district court plainly erred in
not giving her the opportunity to allocute prior to sentencing.
Before imposing sentence, the district court shall address the
defendant personally in order to permit the defendant to speak or
present any information to mitigate the sentence. See Fed. R.
Crim. P. 32(i)(4)(A)(ii). In United States v. Cole, 27 F.3d 996(4th Cir. 1994), we held that the denial of allocution constitutes
plain error on direct appeal warranting a remand for resentencing,
in those instances in which there is a possibility the defendant
could receive a lower sentence. We noticed the error because
“[w]hen a defendant was unable to address the court before being
sentenced and the possibility remains that an exercise of the right
of allocution could have led to a sentence less than that received,
we are of the firm opinion that fairness and integrity of the court
proceedings 250 would be brought into serious disrepute were we to
allow the sentence to stand.” Cole, 27 F.3d at 999; see also
United States v. Muhammed, 478 F.3d 247 (4th Cir. 2007). Thus, we
vacate the sentence and remand for resentencing to give Godwin the
opportunity to allocute.
Accordingly, while we affirm the convictions, we vacate
the sentence and remand for resentencing in order for the district
court to consider the sentencing factors under USSG § 5G1.2, cmt.
n.2(B), applying those factors to the two convictions for
aggravated identity theft. We further remand for resentencing to
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provide Godwin the opportunity to allocute. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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