United States v. Batts , 251 F. App'x 197 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4650
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
KEVIN BATTS, a/k/a K-Smooth,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:03-cr-00394-JRS)
Argued: September 28, 2007 Decided: October 22, 2007
Before WILKINSON and KING, Circuit Judges, and Frederick P. STAMP,
Jr., Senior United States District Judge for the Northern District
of West Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Roderick Charles Young, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellant. Charles Manley Allen, Jr., GOODMAN, ALLEN & FILETTI,
Glen Allen, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
United States Attorney, Alexandria, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We are asked to review the reasonableness of a sentence that
deviates fifty-four percent from the advisory guidelines range.
This court has never upheld such a significant variance, and will
only do so if presented with a sufficient explanation. Because the
district court failed to adequately articulate reasons that justify
the large variance imposed, we find the sentence to be
unreasonable. We thus vacate the sentence and remand for
resentencing.
I.
On August 3, 2004, a jury convicted Kevin Batts of conspiracy
to violate the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), see 18 U.S.C. § 1962(d) (2000), and conspiracy to
distribute and possess with intent to distribute at least fifty
grams of cocaine base, commonly known as “crack,” see 21 U.S.C. §§
841, 846. Batts was a member of the Third Ward Gang in Petersburg,
Virginia. He was one of thirty-six gang members found guilty of
taking part in the above conspiracies. During Batts’s
participation in the conspiracies, which occurred from 1998 to
2003, he ranged from fifteen to nineteen years old.
In a pre-sentence report (“PSR”), the United States Probation
Office calculated that Batts had a total offense level of 36 and a
criminal history category of IV. This was based in part on its
2
determination that Batts was personally responsible for the
distribution of 774.27 grams of cocaine base. At a sentencing
hearing on November 17, 2004, Batts challenged some of the findings
of the PSR. In particular, he argued for a reduced offense level
since all but 4.77 grams of the above amount were related to
conduct that took place when he was a minor. Batts contended that
the court should consider only his post-majority conduct, which
would have resulted in an offense level of 24.
The district court rejected this argument and adopted the
offense level and criminal history category provided in the PSR.
These calculations yielded a sentencing guidelines range of 262-327
months imprisonment.1
Because the law regarding sentencing was in flux at the time,
the district court, pursuant to our decision in United States v.
Hammoud, 378 F.3d 426 (4th Cir. 2004) (en banc), announced two
sentences. The first sentence, 262 months imprisonment, was the
one actually imposed by the district court. It was premised on the
sentencing guidelines being mandatory. The second, or alternate,
sentence was based on the sentencing guidelines being advisory.
Under these circumstances, the court said it would have imposed a
sentence of 120 months imprisonment, the statutory mandatory
minimum. See 21 U.S.C. § 841(b)(1)(A)(iii). The court explained
1
Neither party presently challenges the district court’s
calculation of Batts’s total offense level or applicable guidelines
range.
3
that the alternate sentence was “in line with [Batts’s] argument”
about post-majority conduct, and that while Batts’s claim “lacks
merit because of the current state of the law, it doesn’t lack
logic.”
On March 21, 2006, this court affirmed Batts’s convictions but
vacated his sentence in light of the intervening Booker decision,
which rendered the sentencing guidelines effectively advisory. See
United States v. Batts, 171 Fed. Appx. 977 (4th Cir. 2006). We
remanded for resentencing “because the alternative sentence
(treating the guidelines as advisory) . . . was shorter than the
sentence actually imposed.” Id. at 984.
At a resentencing hearing on May 20, 2006, the district court
imposed the alternate sentence of 120 months imprisonment. This
represented a fifty-four percent deviation from the applicable
guidelines range. When providing its rationale for such a
significant variance, the court simply stated that it had “thought
about this at great length before” and “considered all of the facts
and circumstances” when reaching its decision.
Claiming the sentence to be unreasonable, the government took
a timely appeal, which we now consider.
II.
Under United States v. Booker, 543 U.S. 220, 261 (2005), we
review a sentence for reasonableness. This “involves both
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procedural and substantive components.” United States v. Pyles,
482 F.3d 282, 288 (4th Cir. 2007) (quoting United States v.
Moreland, 437 F.3d 424, 434 (4th Cir. 2006)). “A sentence may be
substantively unreasonable if the court relies on an improper
factor or rejects policies articulated by Congress or the
Sentencing Commission.” Moreland, 437 F.3d at 434.
“A sentence may be procedurally unreasonable, for example, if
the district court provides an inadequate statement of reasons or
fails to make a necessary factual finding.” Id.; United States v.
Davenport, 445 F.3d 366, 372 (4th Cir. 2006). Thus, when imposing
any sentence, but particularly one that deviates from the
applicable guidelines range, the district court “must articulate
the reasons for the sentence imposed.” Moreland, 437 F.3d at 432;
United States v. Battle, --- F.3d. ---, 2007 WL 2484936, at *7 (4th
Cir. 2007). As we have repeatedly recognized, 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; United States v. Baucom,
486 F.3d 822, 828 (4th Cir. 2007); United States v. Hampton, 441
F.3d 284, 287 (4th Cir. 2006). While this does not mean that the
sentencing court must discuss each factor “in checklist fashion,”
Moreland, 437 F.3d at 432, or “conduct a § 3553(a) roll call,”
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it
does mean that “the record must reflect that the court adequately
5
and properly considered the § 3553(a) sentencing factors” when
arriving at a sentence, United States v. Ruhbayan, --- F.3d ---,
2007 WL 2215955, at *9 (4th Cir. 2007) (quoting United States v.
Eura, 440 F.3d 625, 632 (4th Cir. 2006)).
Taken together, our “overarching standard of review” is
“whether the sentence was selected pursuant to a reasoned process
in accordance with law, in which the court did not give excessive
weight to any relevant factor, and which effected a fair and just
result in light of the relevant facts and law.” United States v.
Green, 436 F.3d 449, 457 (4th Cir. 2006); United States v. Tucker,
473 F.3d 556, 561 (4th Cir. 2007).
When considering a sentence’s reasonableness, we “review the
district court’s legal conclusions de novo and its factual findings
for clear error.” Hampton, 441 F.3d at 287.
III.
The government contends that the variance sentence imposed by
the district court is unreasonable. For the reasons that follow,
we agree.2
2
Batts argues that the sentence should be vacated only if it
constitutes plain error, because the government waived any
objection to the alternate sentence. We find this assertion to be
without merit. As we have previously held, the government
preserves an objection to a variance sentence by “arguing for a
sentence within the Guidelines range throughout the sentencing
hearing.” United States v. Curry, 461 F.3d 452, 459 (4th Cir.
2006); see also United States v. Clark, 434 F.3d 684, 686 n.1 (4th
Cir. 2006). In this case, the government has consistently
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Batts’s sentence of 120 months imprisonment represents a
fifty-four percent deviation from the applicable guidelines range.
When previously confronted with such a substantial variance, we
have held that “we must more carefully scrutinize the reasoning
offered by the district court in support of the sentence.”
Moreland, 437 F.3d at 434. This is because the Sentencing
Guidelines, though advisory after Booker, still represent a
reasoned sentencing process. See Rita v. United States, 551 U.S.
___, 127 S. Ct. 2456, 2463-65 (2007); Johnson, 445 F.3d at 341-44.
Thus, exercises of discretion have to be supported by adequate
explanations. See 18 U.S.C. § 3553(c)(2) (“The court, at the time
of sentencing, shall state in open court the reasons for its
imposition of the particular sentence, and, if the sentence is not
[within the guidelines range], the specific reason for the
imposition of a [non-guidelines] sentence. . . .”); Rita, 127 S.
Ct. at 2468-69.
In this case, however, the district court provided little
explanation for its decision, let alone the sort of justification
we hope would accompany such a substantial deviation from the
guidelines range. The court simply stated that it had “thought
about this at great length before” and “considered all of the facts
and circumstances.” The court’s failure to articulate its reasons
advocated a sentence within the applicable guidelines range,
including at the resentencing hearing. Thus, we reject the notion
that it failed to preserve its objection.
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leaves us in the dark as to whether its reasoning is properly “tied
to the factors set forth in § 3553(a).” Moreland, 437 F.3d at 432.
For example, it is not clear whether (or, if so, how) the
district court considered the “need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(6). As
noted earlier, Batts was one of thirty-six Third Ward Gang members
convicted of similar crimes relating to the illegal activity of the
organization. Of those thirty-six, however, Batts was one of only
five who did not plead guilty and instead went to trial. Notably,
his four co-defendants at trial--Antoine Allen, Mario Allen, Kevin
Langston, and Christopher Brown--have been sentenced to life
imprisonment, life imprisonment, 260 months imprisonment, and 240
months imprisonment, respectively. As for the thirty-one members
who pled guilty, each was initially sentenced within his respective
guidelines range: two defendants received sentences below 120
months incarceration, and the other twenty-nine received sentences
ranging from 133-384 months imprisonment.3
Thus, when compared to defendants “who have been found guilty
of similar conduct,” Batts’s sentence is not only significantly
lower than those of his trial co-defendants but also lower than the
3
Though initially sentenced within their applicable guidelines
ranges, many of these defendants have subsequently received
sentence reductions for cooperating with the government. See Fed.
R. Crim. P. 35(b). These figures represent the sentences initially
imposed, before any reduction pursuant to Rule 35.
8
sentences imposed on most of the gang members who pled guilty.
This would seemingly merit an explanation by the district court,
especially since similarly situated defendants who go to trial
typically receive longer sentences than those who plead guilty.
See, e.g., United States v. Khan, 461 F.3d 477, 499-501 (4th Cir.
2006) (noting that a disparity in sentences between those who went
to trial and those who pled guilty is not necessarily unwarranted).
However, no such explanation was explicitly provided. Given the
lack of discussion on the matter, it appears that the district
court failed to consider whether the disparity created by
sentencing Batts more leniently was unwarranted. This failure to
adequately consider § 3553(a)(6), as required by Congress, renders
the sentence unreasonable. See United States v. Clark, 434 F.3d
684, 686 (4th Cir. 2006) (finding unreasonable a sentence given
“wholly without regard for whether the sentence thereby imposed
would result in sentencing disparities”).
Another factor that received incomplete consideration is the
“history and characteristics of the defendant,” specifically his
age during the conspiracies. See 18 U.S.C. § 3553(a)(1). When the
district court stated that it had “thought about this at great
length before,” it presumably was referring to Batts’s first
sentencing hearing, where the court initially determined the then-
alternate sentence of 120 months imprisonment. But even in that
instance, the district court only explained that it was doing so
9
“in line with [Batts’s] argument.” This reference, in turn, was
presumably to Batts’s claim that he should have a lower offense
level because only a small fraction of the drugs he was found
responsible for distributing were related to post-majority conduct.
This bare reference, however, cannot be deemed sufficient. On
the one hand, courts have traditionally weighed a defendant’s age
when meting out punishment. See 18 U.S.C. § 3553(a)(1). To the
extent that much of Batts’s drug activity occurred while he was a
minor, a variance of some sort might be considered. On the other
hand, the fact that Batts continued the same illegal activity after
he had reached the age of majority and spent time in juvenile
detention may indicate that he should not be afforded such a
significant break, since it is not clear that his coming of age has
changed his unlawful conduct. Thus, at a minimum, the district
court should have engaged in a more detailed examination as to
whether Batts’s argument about post-majority conduct justifies such
a significant variance from the guidelines range. This it failed
to do.
The task of reviewing a sentence’s reasonableness should not
be akin to reading tea leaves. In order for appellate courts to
adequately review the reasonableness of a sentence, the reasons
underlying a district court’s decision should be clear. This will
also produce the added benefits of bolstering the “public’s trust
10
in the judicial institution” and helping the “Guidelines
constructively evolve over time.” Rita, 127 S. Ct. at 2468-69.
While we emphasize that a sentencing court need not engage in
an exhaustive review of every § 3553(a) factor in painstaking
detail, we must be confident that the court considered the
appropriate and relevant factors in a reasoned fashion. In this
case, the need for an adequate explanation is particularly
important in light of the degree of deviation from the applicable
guidelines range and the concerns involving the § 3553(a) factors
we note above. See Moreland, 437 F.3d at 434 (holding that the
“farther the court diverges from the advisory guideline range, the
more compelling the reasons for the divergence must be”).
Because the district court did not provide sufficient reasons
to justify such a substantial deviation from the applicable
guidelines range, we find Batts’s sentence to be unreasonable.
Thus, we vacate the sentence and remand for resentencing.
VACATED AND REMANDED
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