United States v. Dillon , 251 F. App'x 171 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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.
(CR-04-456)
Submitted: September 26, 2007 Decided: October 17, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Randolph O. Gregory, Sr., LAW OFFICES OF RANDOLPH O. GREGORY, SR.,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Andrew G. W. Norman, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Bernard Dillon pled guilty to credit card fraud
in violation of 18 U.S.C. § 1029 (2000). Dillon appeals his
sentence, arguing that the district court erred in departing
without prior notice, and in departing upward by ten levels without
following the approved procedure for a departure pursuant to U.S.
Sentencing Guidelines Manual § 4A1.3, p.s. (2004), or for a
departure above criminal history category VI. We agree that
resentencing is required.
With twenty criminal history points, Dillon was in
criminal history category VI. Although the probation officer did
not suggest any grounds for departure in the presentence report and
the government requested a sentence within the guideline range, at
the sentencing hearing the district court decided that Dillon’s
criminal record warranted a higher sentence. The court noted
Dillon’s twenty-three convictions in seven states over more than
twenty years, for which he had received many lenient sentences,
each for a relatively small crime. The court made the assumption
that no judge had been able to consider any of these crimes in the
proper context. The court noted further that Dillon was on parole
from a prior robbery conviction when he committed the instant
offense. The district court departed upward from offense level 12
to level 21, increasing the advisory guideline range from 30-37
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months to 84-105 months, and imposed a sentence of eighty-seven
months imprisonment.*
Following United States v. Booker, 543 U.S. 220 (2005),
we review a sentence for reasonableness. United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). When the
court departs from the advisory guideline range post-Booker, the
defendant is, as before, entitled to notice of the court’s
intention before sentencing. United States v. Davenport, 445 F.3d
366, 371 (4th Cir. 2006). However, a failure to provide notice is
not always prejudicial error. Id.
Because Dillon did not object in the district court to
the lack of notice, the issue is reviewed for plain error. United
States v. Olano, 507 U.S. 725, 731-32 (1993); United States
v. McClung, 483 F.3d 273, 276 (4th Cir. 2007), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. July 12, 2007) (No. 07-5347). Under
the plain error test, the defendant must show that (1) error
occurred; (2) the error was plain; and (3) the error affected his
substantial rights. Olano, 507 U.S. at 732. Even when these
conditions are satisfied, this court may exercise its discretion to
notice the error only if the error “seriously affect[s] the
*
The orally pronounced sentence was eighty-seven months.
While the judgment order states that the sentence is eighty-four
months, the orally pronounced sentence controls. United States v.
Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003) (citing United
States v. Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965)); see also
Rakes v. United States, 309 F.2d 686, 687-88 (4th Cir. 1962).
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fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks omitted). Here, as in McClung and
Davenport, plain error occurred because Dillon had no notice of a
possible departure until the court imposed sentence. However, as
in Davenport, we need not decide whether Dillon was prejudiced
because the court erred in making the departure, and resentencing
is required for that reason. See Davenport, 445 F.3d at 371.
When reviewing a departure, we consider “whether the
sentencing court acted reasonably both with respect to its decision
to impose such a sentence and with respect to the extent of the
divergence from the sentencing range.” Hernandez-Villanueva, 473
F.3d at 123. A departure pursuant to USSG § 4A1.3 is encouraged
when the criminal history category does not adequately account for
the defendant’s past criminal conduct or the likelihood that he
will commit other crimes. United States v. Dixon, 318 F.3d 585,
588 (4th Cir. 2003). Here, the district court adequately stated
its reasons for departing pursuant to § 4A1.3 and the departure was
based on proper factors. Hernandez-Villanueva, 473 F.3d at 123.
Thus, the district court’s decision to depart was reasonable.
United States v. Dalton, 477 F.3d 195, 198-99 (4th Cir. 2007).
However, the court departed above category VI without
following the “incremental approach” mandated by § 4A1.3(a)(4)(B)
and our precedent for departures above category VI. Dalton, 477
F.3d at 199; United States v. Cash, 983 F.2d 558, 561 (4th Cir.
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1992); United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992).
The court imposed a sentence more than twice the top of the
advisory guideline range without providing either the incremental
analysis required by § 4A1.3 or the “extensive justification”
required by “dramatic departures.” Dalton, 477 F.3d at 199 (citing
United States v. Hampton, 441 F.3d 284, 288 (4th Cir. 2006)). The
court merely stated at the sentencing hearing that it would impose
a seven-year sentence, and said nothing about how it determined the
extent of the departure.
Accordingly, we vacate the sentence and remand for
resentencing. On remand, the court should explain why category VI
is inadequate, and “move incrementally down the sentencing table to
the next higher offense level until it finds a guideline range
appropriate to the case.” USSG § 4A1.3(a)(4)(B); Dalton, 477 F.3d
at 200 n.3. 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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