United States v. Melchor Calderon ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4357
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELCHOR CALDERON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. David A. Faber, Senior District Judge. (7:12-cr-00037-FA-2)
Submitted: November 29, 2023 Decided: December 18, 2023
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: Sandra Barrett, Hendersonville, North Carolina, for Appellant. Michael F.
Easley, Jr., United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2014, Melchor Calderon was convicted of conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951; possessing a firearm during a crime of violence,
in violation of 18 U.S.C. §§ 2, 924(c)(1)(B)(i); conspiracy to distribute cocaine, in violation
of 21 U.S.C. § 846; and kidnapping, in violation of 18 U.S.C. §§ 2, 1201(a). Calderon filed
a 28 U.S.C. § 2255 motion to vacate his § 924(c) conviction, and the district court granted
the motion, vacated Calderon’s conviction and sentence for the § 924(c) offense, and
scheduled a resentencing hearing. Calderon now appeals the 242-month sentence of
imprisonment that the court imposed on resentencing. He challenges the procedural and
substantive reasonableness of the sentence, argues that the Government committed
prosecutorial misconduct in advocating for a particular sentence, and contends that vacatur
of the sentence is warranted pursuant to the doctrine of cumulative error. ∗ We vacate and
remand for resentencing.
When, as here, the district court reviews a sentence under § 2255 and determines
that it is unlawful, the court shall vacate and set aside the sentence and must order “(1) the
prisoner’s release, (2) the grant of a future new trial to the prisoner, (3) or a new sentence,
be it imposed by (a) a resentencing or (b) a corrected sentence.” United States v. Hadden,
475 F.3d 652, 661 (4th Cir. 2007); see also 28 U.S.C. § 2255(b). Here, the court conducted
a resentencing hearing, and we review Calderon’s resulting sentence for reasonableness
∗
Calderon also briefly argues that the district court’s failure to explicitly vacate the
entirety of his original sentence renders his new sentence void. This argument is meritless.
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“under a deferential abuse-of-discretion standard.” United States v. Torres-Reyes, 952 F.3d
147, 151 (4th Cir. 2020) (internal quotation marks omitted). We first examine the sentence
for procedural error, which includes “failing to properly calculate the applicable
Sentencing Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, and
failing to adequately explain the sentence.” United States v. Provance, 944 F.3d 213, 218
(4th Cir. 2019). Only if we find the sentence procedurally reasonable do we consider its
substantive reasonableness. Id.In pronouncing a sentence, “[a] district court is required to provide an individualized
assessment based on the facts before the court, and to explain adequately the sentence
imposed to allow for meaningful appellate review and to promote the perception of fair
sentencing.” United States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020) (internal quotation
marks omitted). While we “will not vacate a sentence simply because the district court did
not spell out what the context of its explanation made patently obvious,” United States v.
Blue, 877 F.3d 513, 520-21 (4th Cir. 2017) (internal quotation marks and alterations
omitted), “[t]he court’s explanation should set forth enough to satisfy the appellate court
that it has considered the parties’ arguments and has a reasoned basis for exercising its own
legal decisionmaking authority,” United States v. Lozano, 962 F.3d 773, 782
(4th Cir. 2020) (internal quotation marks and alterations omitted). Further, where “the
district court imposes a sentence outside of the Guidelines range, it must consider the extent
of the deviation and ensure that the justification is sufficiently compelling to support the
degree of the variance.” Provance, 944 F.3d at 217 (internal quotation marks omitted).
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Our review of the record indicates that the district court’s explanation was
inadequate to allow for meaningful appellate review. The court imposed a sentence over 70
months above the high end of the advisory Guidelines range, citing only the egregious
nature of Calderon’s offense conduct. While Calderon’s conduct was abhorrent, the court
failed to explain how that conduct justified the extent of the variance or otherwise offer a
basis for the degree of the deviation. Additionally, the court briefly stated that it had
considered Calderon’s mitigating arguments and the § 3553(a) factors, but it did not
discuss whether or how those arguments and factors influenced its sentencing calculus.
See Blue, 877 F.3d at 518 (“[A] perfunctory recitation of the defendant’s arguments or the
§ 3553(a) factors without application to the defendant being sentenced does not
demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.”
(internal quotation marks omitted)). Even viewing the court’s explanation in the context
of the sentencing hearing as a whole, we are left to “guess at the district court’s rationale”
for imposing the chosen sentence. Provance, 944 F.3d at 218 (internal quotation marks
omitted). Thus, we conclude that the court procedurally erred by failing to adequately
explain the sentence.
Accordingly, we vacate the sentence and remand for resentencing. Because we
conclude that the district court’s procedural error warrants resentencing, we do not reach
Calderon’s remaining arguments regarding the sentence’s substantive reasonableness, the
Government’s conduct in advocating for a particular sentence, or the court’s alleged
cumulative error. We dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
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