United States v. Meares ( 2008 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4497
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    DEMETRIUS TERRY MEARES,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at New Bern.   Terrence W. Boyle,
    District Judge. (7:06-cr-00108-BO)
    Submitted:    July 17, 2008                 Decided:   August 14, 2008
    Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Vacated and remanded by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
    Assistant Federal Public Defender, Raleigh, North Carolina, for
    Appellant. George E. B. Holding, United States Attorney, Anne M.
    Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Demetrius Terry Meares pled guilty pursuant to a written
    plea agreement to armed bank robbery (“Count One”) and brandishing
    a firearm during and in relation to a crime of violence (“Count
    Two”), in violation of 
    18 U.S.C. §§ 924
    (c)(1)(A)(ii); 2113(a), (d)
    (2000).       Meares    was       sentenced      to   a   total    of    300    months’
    imprisonment.    He challenges this sentence on appeal.
    As to the armed bank robbery offense charged in Count
    One, the Presentence Investigation Report recommended an adjusted
    offense level of twenty and a criminal history category of V,
    thereby resulting in an advisory guideline range of 63 to 78
    months’ imprisonment. See U.S. Sentencing Guidelines Manual Ch. 5,
    Pt. A (2006) (sentencing table).                   As to the firearms offense
    charged in Count Two, Meares’s advisory guideline sentence was the
    minimum term of imprisonment required by statute, or eighty-four
    months.    See     USSG       §    2K2.4(b)      (2006);     see   also    
    18 U.S.C. § 924
    (c)(1)(A)(ii).
    Meares       agreed      with    the    contents    of   the    presentence
    report, including the details surrounding a second armed bank
    robbery that was charged in Count Three, but dismissed pursuant to
    the terms of the plea agreement.                  The district court, however,
    determined that an additional two-level increase was warranted
    under USSG § 3A1.1 (2006) (vulnerable victim enhancement) because
    Meares took a woman in her fifties hostage during the second armed
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    bank robbery.     Meares’s counsel argued against the enhancement,
    stating   the   purpose    of    §   3A1.1      was   to   punish      offenders   who
    intentionally chose victims based on an immutable characteristic,
    such as race.     The court disagreed with counsel’s argument, and
    applied the enhancement.             Consequently, the advisory guideline
    range for Count One, based on an adjusted offense level of twenty-
    two and a criminal history category of V, was 77 to 96 months.
    Because     the     facts    surrounding        the     robberies      were
    egregious, the court determined that a sentence above the advisory
    guideline range was warranted.             Pursuant to USSG § 5K2.21 (2006),
    the court calculated an upward departure range based on the facts
    surrounding the dismissed count, including the fact that the second
    armed bank robbery involved a “vulnerable victim.” Since the court
    concluded that the departure guideline range was still “inadequate
    to accurately reflect the planning and consummation of these
    crimes,” it imposed a variance sentence totaling 300 months’
    imprisonment,    which    included       180    months     on     Count   One   and   a
    consecutive term of 120 months on Count Two.
    Meares challenges the district court’s application of the
    Sentencing Guidelines on appeal.             He specifically argues that the
    court impermissibly double counted the conduct in the dismissed
    count by using it as the basis for application of a vulnerable
    victim    enhancement     during     its    determination         of   the   advisory
    guideline range as well as for an upward departure under § 5K2.21.
    - 3 -
    The Government concedes that the district court impermissibly
    double counted.            Additionally, the Government notes that the
    court’s   application         of       the    vulnerable       victim     enhancement    in
    calculating the advisory guideline range was likewise erroneous as
    it was based on conduct unrelated to the crimes for which Meares
    pled guilty.
    When determining a sentence, the district court must
    calculate the appropriate advisory guideline range and consider it
    in conjunction with the factors set forth in 
    18 U.S.C. § 3553
    (a)
    (2000).     Gall v. United States, 
    128 S. Ct. 586
    , 596 (2007).                           In
    reviewing    the     district          court’s   application         of   the   Sentencing
    Guidelines,    we        review    findings       of    fact    for     clear   error   and
    questions of law de novo.                United States v. Green, 
    436 F.3d 449
    ,
    456 (4th Cir. 2006).               Appellate review of a district court’s
    imposition    of     a    sentence,          “whether    inside,      just   outside,    or
    significantly outside the Guidelines range,” is for abuse of
    discretion.    Gall, 
    128 S. Ct. at 591
    .
    “Double       counting          occurs     when    a     provision   of    the
    Guidelines is applied to increase punishment on the basis of a
    consideration that had been accounted for by application of another
    Guideline provision or by application of a statute.”                                United
    States v. Reevey, 
    364 F.3d 151
    , 158 (4th Cir. 2004).                                Unless
    expressly     prohibited          by    the     Guidelines,         double   counting    is
    permitted.     
    Id.
            Such is the case in § 5K2.21, which recognizes
    - 4 -
    that a court may “depart upward to reflect the actual seriousness
    of the offense based on conduct . . . underlying a charge dismissed
    as part of a plea agreement,” but requires that the conduct at
    issue   may    not      have    “enter[ed]    into    the     determination     of   the
    applicable guideline range.”               USSG § 5K2.21.
    The    district      court    indisputably       used     the   dismissed
    conduct in Count Three to both calculate the advisory guideline
    range and depart upward under § 5K2.21.                      As this form of double
    counting      is    expressly      prohibited       by   §    5K2.21,    the    court’s
    application        of   the     Guidelines    was    erroneous.         Moreover,    as
    commendably noted by the Government, the court’s application of the
    vulnerable victim enhancement in initially determining Meares’s
    advisory guideline range was likewise erroneous as the conduct
    underlying the enhancement was unrelated to the charges for which
    Meares pled guilty.            Consequently, Meares’s sentence, which is the
    result of significant procedural error, is unreasonable.                             See
    United States v. Evans, 
    526 F.3d 155
    , 160-62, 164 (4th Cir. 2008).
    We therefore vacate Meares’s sentence and remand for resentencing.
    On remand, the district court should first determine the
    appropriate sentencing range under the Guidelines, making all
    factual findings appropriate for the determination. 
    Id. at 160-61
    .
    The court should consider this sentencing range along with the
    other factors described in 
    18 U.S.C. § 3553
    (a) and then impose a
    sentence.          
    Id. at 161
    .        If that sentence falls outside the
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    Guidelines range, the court should articulate its reasons for the
    departure or variance with respect to each count.     
    Id.
       We, of
    course, indicate no view as to the appropriate sentence to be
    imposed upon Meares, leaving that determination, in the first
    instance, to the district court.
    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
    - 6 -
    

Document Info

Docket Number: 07-4497

Judges: Niemeyer, Motz, Hamilton

Filed Date: 8/14/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024