United States v. Batts ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4676
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
LINWOOD BATTS, JR.,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00064-BO-1)
Submitted: December 29, 2009 Decided: January 27, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellant. Kelly L. Greene, GREENE
& WILSON, P.A., New Bern, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In an earlier opinion, we vacated the sentence of
Appellee Linwood Batts, Jr., for a firearm conviction and
remanded for resentencing. At resentencing, the Government
moved for an upward departure, but the district court refused to
allow the Government’s motion. The Government appeals, arguing
that this refusal was error. We agree, and once again vacate
and remand for resentencing.
As recounted in our earlier opinion, United States v.
Batts, 317 F. App’x 329, 330 (4th Cir. 2009) (No. 08-4179)
(“Batts I”), Batts pled guilty pursuant to a plea agreement to
conspiracy to possess with the intent to distribute cocaine, in
violation of 21 U.S.C. § 846 (2006), and carrying a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2006). The district court sentenced Batts to
57 months’ imprisonment on the drug conspiracy conviction and a
consecutive sentence of 168 months’ imprisonment on the firearm
conviction. Id. Batts appealed, claiming that the Government
breached the plea agreement by moving for an upward departure on
the drug conspiracy conviction and that the 168-month sentence
for the firearm conviction, a sentence double the 84-month
sentence under the Sentencing Guidelines, see U.S. Sentencing
Guidelines Manual (“USSG”) (2007), was procedurally defective
because the district court failed to comply with USSG
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§ 4A1.3(a)(4)(B) and to explain adequately its sentence. Id. at
330-31. We held that the Government had not breached the plea
agreement in moving for an upward departure but that the
district court erred by failing to move through the Guidelines’
sentencing table and to explain adequately its reasons for
imposing the 168-month sentence. Id. at 332. We therefore
affirmed Batts’ sentence for the drug conspiracy conviction but
vacated the sentence for the firearm conviction and remanded for
resentencing. Id. at 332-33.
At resentencing, the Government moved for an upward
departure based on the seriousness of the circumstances of the
offense and to protect the public from further crimes by Batts.
The district court refused to allow the Government’s motion,
reasoning that our opinion in Batts I precluded the granting of
an upward variance on remand. It imposed a within-Guidelines
sentence of 84 months’ imprisonment on the firearm conviction,
to run consecutive to the 57-month sentence on the drug
conspiracy conviction.
The Government argues on appeal that the district
court misconstrued our opinion in Batts I and erred in refusing
to entertain the Government’s motion. We agree. A resentencing
hearing should be conducted de novo unless this court’s mandate
specifically limits the district court to certain issues.
United States v. Broughton-Jones, 71 F.3d 1143, 1149 n.4
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(4th Cir. 1995); United States v. Smith, 930 F.2d 1450, 1456
(10th Cir. 1991) (concluding that, absent explicit limitations,
an order vacating a sentencing and remanding for resentencing
“directs the sentencing court to begin anew, so that fully de
novo resentencing is entirely appropriate” (internal quotation
marks omitted)); cf. United States v. Cornelius, 968 F.2d 703,
705 (8th Cir. 1992) (“Once a sentence has been vacated or a
finding related to sentencing has been reversed and the case has
been remanded for resentencing, the district court can hear any
relevant evidence on that issue that it could have heard at the
first hearing.”).
Our opinion in Batts I did not limit or restrict the
scope of our remand for resentencing on the firearm count. On
the contrary, we emphasized that the district court retained the
discretion on remand to impose the same sentence or select an
alternate one. Further, we emphasized that our opinion in Batts
I “should not be read as indicating any view on the
appropriateness of the sentence imposed.” Batts, 317 F. App’x
at 332 n.*.
Our review of the resentencing transcript convinces us
that the district court misunderstood the scope of our mandate.
Accordingly, we again vacate the sentence for the firearm
conviction and remand for resentencing. We reiterate that we
express no opinion on the substantive appropriateness of the
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sentence to be imposed on remand. 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.
VACATED AND REMANDED
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