United States v. Byrd , 278 F. App'x 277 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5162
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDWARD BYRD, III,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-7068)
Submitted: April 24, 2008 Decided: May 13, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Don Willey, Jefferson, North Carolina, for Appellant. Gretchen C.
F. Shappert, United States Attorney, Charlotte, North Carolina; Amy
E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted James Edward Byrd, III, of conspiracy to
distribute and possess with intent to distribute fifty grams or
more of crack cocaine, in violation of 21 U.S.C. § 846 (2000), and
the district court sentenced him to 360 months of imprisonment. In
a prior appeal, we affirmed Byrd’s conviction, vacated his
sentence, and remanded for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005). See United States v. Byrd,
151 F. App’x 218 (4th Cir. 2005). On remand, the district court
resentenced Byrd to a 240-month term of imprisonment, and we
affirmed. See United States v. Byrd, 238 F. App’x 948 (4th Cir.
2007), vacated, 128 S. Ct. 1073 (2008). This case now is before us
on remand from the United States Supreme Court for further
consideration in light of Gall v. United States, 128 S. Ct. 586
(2007).
In sentencing a defendant after Booker, a district court
must engage in a multi-step process. First, the court must
correctly calculate the appropriate advisory guidelines range.
Gall, 128 S. Ct. at 596 (citing Rita v. United States, 127 S. Ct.
2456, 2465 (2007)). The court then must consider that range in
conjunction with the § 3553(a) factors. Id. The court “may not
presume that the Guidelines range is reasonable” but, rather, “must
make an individualized assessment based on the facts presented” in
determining an appropriate sentence. Id. at 596-97. If the court
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determines that a sentence outside of the guideline range is
appropriate, the court “must consider the extent of the deviation
and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Id. at 597. The district
court also must “adequately explain the chosen sentence to allow
for meaningful appellate review.” Id.
Appellate review of a district court’s imposition of a
sentence (whether inside or outside of the guideline range) is for
abuse of discretion. Id.; see also United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007). The appellate court:
must first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to
adequately explain the chosen sentence--including an
explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is
procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard. When
conducting this review, the court will, of course, take
into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.
Gall, 128 S. Ct. at 597.
In light of Gall, we find that the district court
committed a significant procedural error in sentencing Byrd. The
court noted at the beginning of the sentencing hearing that the
applicable guideline range was 360 months to life imprisonment but
that the range would “be capped at 240 months” (JA-I at 398), the
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statutory maximum established in accordance with United States v.
Collins, 415 F.3d 304, 311-15 (4th Cir. 2005). However, in
sentencing Byrd, the district court applied the guideline range of
360 months to life imprisonment as the starting point for
determining whether a variance was warranted rather than starting
with a guideline range of 240 months. The district court declined
to go below the 240-month statutory maximum sentence, noting that
the original guideline range was “considerably in excess of 240
months.” (JA-I at 408). Because the district court did not
consider the § 3553(a) factors in conjunction with the correct
guideline range of 240 months, we conclude that the district court
procedurally erred.
Accordingly, we vacate Byrd’s sentence and remand for
further proceedings consistent with Gall. 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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