United States v. Rhone ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4686
LONNIE DEWITT RHONE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-02-60)
Submitted: February 28, 2003
Decided: March 24, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Jeanette Doran Brooks, Research
& Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Felice McConnell Corpening, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. RHONE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lonnie Dewitt Rhone pled guilty to armed bank robbery, 18 U.S.C.
§ 2113(a), (d) (2000), after he robbed a bank in Buies Creek, North
Carolina, in July 2001. Rhone had been convicted of bank robbery in
1979 and of three bank robberies, one of them an armed robbery, in
1992. The 1992 robberies were counted as one offense in Rhone’s
criminal history because they were related cases. U.S. Sentencing
Guidelines Manual § 4A1.2, comment. (n.3) (2001). In sentencing
Rhone for the instant offense, the district court departed upward from
criminal history category II to category IV pursuant to USSG
§ 4A1.3, p.s., and imposed a sentence of 66 months. Rhone appeals
his sentence, arguing that the court failed to provide a clear explana-
tion for the departure.
Rhone contends that the district court erred by not specifying
whether its departure was based on his uncounted 1979 bank robbery
sentence or the later bank robberies that were counted in his criminal
history. He also argues that the court erred by failing to structure the
departure by moving incrementally to higher categories.
Our review of Rhone’s criminal record reveals that the district
court had ample reason to depart upward, and it appears clear that the
court based its departure on the uncounted 1979 bank robbery. How-
ever, we are constrained to remand for resentencing because the court
departed from criminal history category II to category IV without
explaining why category III was inadequate. A departure for inade-
quate criminal history must comply with the requirements of United
States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992), which calls for a
structured, incremental approach achieved by moving "to succes-
sively 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." See also United States v. Lawrence,
UNITED STATES v. RHONE 3
161 F.3d 250, 256 (4th Cir. 1998); United States v. Harrison, 58 F.3d
115, 118 (4th Cir. 1995). On remand, the court should explain clearly
the basis for the departure and comply with the requirements of Cash.
We therefore vacate the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
VACATED AND REMANDED