United States v. Richardson ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4817
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
TAUHEEDAH RICHARDSON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-02-60)
Argued: February 1, 2007 Decided: May 11, 2007
Before WILKINS, Chief Judge, and NIEMEYER and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Michael Gordon James, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellant. Richard Clarke Speaks, Wilmington, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tauheedah Richardson was convicted of conspiring to distribute
and possessing with intent to distribute more than 50 grams of
crack cocaine and an unspecified quantity of cocaine powder, in
violation of 21 U.S.C. §§ 846, 841(a)(1). Applying the mandatory
Sentencing Guidelines, the district court sentenced Richardson on
February 2, 2004, to a 324-month term of imprisonment. Because
that sentence violated Richardson’s Sixth Amendment jury trial
right, as subsequently determined in United States v. Booker, 543
U.S. 220, 244 (2005), we vacated the sentence and remanded the case
for resentencing in accordance with Booker. See United States v.
Richardson, No. 03-4843, 2005 U.S. App. LEXIS, at *9-12 (4th Cir.
April 15, 2005).
At resentencing, the district court calculated the recommended
Sentencing Guideline range to be 324 to 405 months, but imposed a
180-month term of imprisonment. The district court gave three
reasons for imposing the variance sentence: (1) Richardson’s
“youthfulness” at the time of the criminal conduct; (2) her good
character prior to becoming the girlfriend of one of the principal
members of the drug conspiracy; and (3) her post-sentencing
rehabilitative efforts. The government appeals the variance
sentence, contending that the reasons given by the district court
did not justify the extraordinary variance, and therefore the
sentence imposed was unreasonable. We agree and accordingly remand
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for resentencing, but we do not rule out any variance as
unreasonable.
Following Booker, we review sentences for reasonableness.
Booker, 543 U.S. at 261. “A sentence falling outside of the
properly calculated Guidelines range is not ipso facto
unreasonable,” United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006), for if a sentence within that range does not serve the
sentencing factors set forth in § 3553(a), a court must “select a
sentence that does serve those factors,” id. at 456. The reasons
for the variance, therefore, “must be based on the factors listed
in § 3553(a),” id., and the district court must “articulate the[se]
reasons,” United States v. Moreland, 437 F.3d at 432 (4th Cir.
2006).
In reviewing a variance sentence, we consider “whether the
district court acted reasonably with respect to (1) the imposition
of a variance sentence, and (2) the extent of the variance.”
Moreland, 437 F.3d at 434. If the district court “provides an
inadequate statement of reasons[,] relies on improper factors,” or
gives “excessive weight to any relevant factor,” the sentence “will
be found unreasonable and vacated.” Green, 436 F.3d at 457. Also,
“where the variance is a substantial one,” such as here, “we must
more carefully scrutinize the reasoning offered by the district
court in support of the sentence,” and “the farther the court
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diverges from the advisory guidelines range, the more compelling
the reasons for divergence must be.” Moreland, 437 F.3d at 434.
In this case, the district court was impressed with
Richardson’s good character prior to becoming the girlfriend of one
of the conspiracy’s principal members. The court saw in Richardson
a person of good character with little criminal history (one
conviction for use of a “simple worthless check” and one conviction
for marijuana possession) whose present criminality was
substantially influenced by her romantic relationship with one of
the conspiracy’s principals. This conclusion was fortified by
Richardson’s rehabilitative efforts between the first and second
sentencing proceedings in this case.
We conclude, however, that the reasons offered by the district
court do not provide a basis sufficiently compelling to justify the
substantial downward variance granted in this case -- a reduction
of Richardson’s sentence from a recommended range of 324 to 405
months to 180-months’ imprisonment. See Moreland, 437 F.3d at 434.
First, Richardson’s prior good character, the effect of her
personal relationship with a principal in the conspiracy on her
criminal activities, and her lack of notable criminal record may
relate to some § 3553(a) sentencing factors, but they are not so
extraordinary as to provide a compelling basis on which to support
a large variance.
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Second, the district court’s reliance on Richardson’s youth
was misplaced. A district court is required to consider “any
pertinent policy statement issued by the Sentencing Commission.”
18 U.S.C. § 3553(a)(5)(A). One such policy statement provides that
“age (including youth) is not ordinarily relevant in determining
whether a departure is warranted.” U.S.S.G. § 5H1.1.
Third, the district court’s reliance upon Richardson’s post-
sentencing rehabilitative efforts was similarly misplaced. The
Sentencing Commission has issued a policy statement indicating that
“post-sentencing rehabilitative efforts, even if exceptional,
undertaken by a defendant after imposition of a term of
imprisonment for the instant offense are not an appropriate basis
for a downward departure when resentencing the defendant for that
offense.” U.S.S.G. § 5K2.19. The discouraged sentencing factor of
youthfulness and the inappropriate sentencing factor of post-
sentencing rehabilitative efforts cannot provide a “compelling”
basis for a substantial variance.
Finally, the district court failed to account for the
seriousness of Richardson’s criminal conduct and to demonstrate how
such a large variance would serve the primary purposes of
sentencing that are described in § 3553(a)(2)(A). Richardson was
convicted for her participation in a wide-ranging, multi-year drug
trafficking conspiracy based in New Bern, North Carolina. During
that time, she was the girlfriend of a principal member of the
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conspiracy. The evidence presented at trial established that she
was extensively involved, demonstrating that she stored drugs; that
she stored cash proceeds from drug sales; that she transported
cocaine shipments from New York to North Carolina; that she
transported co-conspirators to drug sales; that she attended the
conversion of powder cocaine into crack cocaine; that she
facilitated communication among her co-conspirators by transporting
messages among them; that she obtained a firearm for her co-
conspirators; that she helped her co-conspirators evade arrests,
including one who had committed murder; that she permitted the
concealment of a murder weapon behind residence; and that she
herself sold crack cocaine on occasion. We conclude that the
substantial variance sentence imposed does not “reflect the
seriousness” of this conduct, “promote respect for the law” that
was broken, nor “provide just punishment” for Richardson’s
prolonged entanglement with the drug trafficking conspiracy. See
18 U.S.C. § 3553(a)(2)(A).
For the reasons given, we vacate Richardson’s variance
sentence because the extent of the variance was unreasonable. Our
holding, however, does not deny the court discretion to impose a
variance sentence as appropriate to support the sentencing factors
found in § 3553(a).
VACATED AND REMANDED
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