United States v. Blount , 284 F. App'x 1 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4923
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARREN BLOUNT,
Defendant - Appellant.
No. 07-4924
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNELL PIERCE, a/k/a Nut,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:03-cr-00004-MJG)
Submitted: May 30, 2008 Decided: July 3, 2008
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Gary A. Ticknor, Elkridge, Maryland; G Arthur Robbins, CHESAPEAKE
MERIDIAN, Annapolis, Maryland, for Appellants. Rod J. Rosenstein,
United States Attorney, Steven H. Levin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Donnell Pierce and Warren Blount appeal their sentences
after the district court conducted resentencing pursuant to our
opinion remanding the cases in light of United States v. Booker,
543 U.S. 220 (2005). On remand, the district court granted
downward variances and imposed 235-month sentences.
Pierce and Blount were resentenced approximately three
months before the Supreme Court decided Kimbrough v. United States,
128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586(2007). They argue that, although the district court exercised
some of its discretion to impose a downward variance sentence, it
did not exercise its full discretion as announced in Gall and
Kimbrough. Defendants rely on the comments of the court that it
would be comfortable imposing a lower sentence, but that it was
imposing the lowest sentence “under what is binding to me.” They
also briefly argue that, after Kimbrough, the district court was
free to reject sentencing factors not based on empirical evidence
or used in a manner inconsistent with the design of the sentencing
guidelines. The Government argues that the complete record
evidences that the district court was aware of its full discretion,
by granting initial downward departures, and then downward
variances on resentencing.
In Gall, the Supreme Court ruled that certain circuit
courts had effectively created “an impermissible presumption of
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unreasonableness for sentences outside the Guidelines range” and
improperly applied “a heightened standard of review to sentences
outside the Guidelines range.” 128 S. Ct. at 595-96. Further,
while an appellate presumption of reasonableness applied to a
within-Guidelines sentence is appropriate, the Supreme Court noted
that a district court “may not presume that the Guidelines range is
reasonable.” Id. at 596-97. In addition, in Kimbrough, the
Supreme Court held that a district court may impose a variance
sentence on the basis that, in a given case, the Guidelines range
fails to properly reflect the statutory factors. 128 S. Ct. at
575.
We agree with the Defendants that the district court may
have understood itself to be barred from imposing a lower variance
sentence based only on its determination that the Guidelines
sentence was too severe. In light of Kimbrough and Gall, the
district court’s understanding of its authority and discretion may
have been erroneous. As the Government correctly notes, the
district court was aware that it had some discretion to grant a
downward variance because it granted the variance. However, the
record is not clear as to whether the court would have granted a
further variance if it had the benefit of Kimbrough and Gall.
Accordingly, we vacate Pierce and Blounts’ sentences, and
remand for resentencing. We express no opinion on the
reasonableness of any particular sentence. We dispense with oral
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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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