United States v. Atkins , 194 F. App'x 157 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4477
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MEGAN ATKINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:05-cr-00170-WDQ)
Submitted: July 10, 2006 Decided: August 14, 2006
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Lisa W. Lunt, Assistant
Federal Public Defender, Lauren E. Case, Staff Attorney, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Martin J. Clarke, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Megan Atkins appeals the district court’s sentence
imposed after revocation of probation. Because we find the
district court erred in applying the guidelines, we vacate the
sentence and remand for resentencing.
After Atkins pled guilty to theft of Government property,
she was assigned a sentencing guidelines base offense level of
twelve. Two levels were added for having stolen a firearm and two
levels were deducted for acceptance of responsibility. At
sentencing, the Government moved for a two-level reduction for
substantial assistance. The district court granted the motion, but
imposed a four-level reduction, leaving Atkins with an offense
level of eight. Because she was in criminal history category I,
the range of imprisonment was 0 to 6 months. As a result of being
in Zone A of the sentencing table, Atkins was eligible for a
sentence of probation. See U.S. Sentencing Guidelines Manual
§ 5B1.1(a)(1) (2005). The court sentenced Atkins to three years’
probation.
Atkins admitted she violated her probation and the
district court noted its intention to sentence Atkins to a term of
imprisonment. The court erroneously noted Atkins’ total offense
level was ten. Thus, the court understood her sentencing range to
be six to twelve months’ imprisonment. Pursuant to 18 U.S.C.
§ 3565(a) (2000), the court had authority to revoke the sentence of
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probation and resentence Atkins under the provisos of the original
sentencing proceeding. Because the court assumed Atkins had an
offense level of ten instead of eight, Atkins was exposed to a six
to twelve month range of imprisonment.
As a result of the district court’s error in assuming
Atkins had an offense level of ten, it imposed a sentence outside
the properly calculated range of imprisonment.
A sentence falling outside of the properly calculated
Guidelines range is not ipso facto unreasonable. But if
that sentence is based on an error in construing or
applying the Guidelines, it will be found unreasonable
and vacated. See 18 U.S.C. § 3742(f)(1). The same is
true if the sentence is imposed outside the Guideline
range and the district court provides an inadequate
statement of reasons or relies on improper factors in
departing from the Guidelines’ recommendation. See id. §
3742(f)(2).
United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006).
We find the twelve month sentence was unreasonable.*
Accordingly, we vacate the sentence and remand for further
proceedings consistent with this opinion. 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
*
If the district court intended to upwardly depart from the
range of imprisonment, it provided an inadequate statement of
reasons for departing. See Green, 436 F.3d at 457.
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