United States v. Jacquez Hill

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4468
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JACQUEZ HILL, a/k/a Jac Hill,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, District Judge. (7:19-cr-00025-BO-1)
Argued: January 27, 2023 Decided: February 10, 2023
Before NIEMEYER, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Bart Gilbert, TARLTON LAW PLLC, Raleigh, North Carolina, for
Appellant. Kristine L. Fritz, OFFICE OF UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Michael F. Easley, Jr., United States Attorney, David
A. Bragdon, 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Unpublished opinions are not binding precedent in this circuit.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:
Jacquez Hill appeals from an above-Guidelines sentence of 108 months that was
imposed on him in September 2021 in the Eastern District of North Carolina. Hill
maintains on appeal that, inter alia, his sentence is procedurally and substantively
unreasonable. As explained herein, Hill’s sentence is both procedurally and substantively
reasonable, and we are obliged to affirm.
I.
Pursuant to a plea agreement, Hill pleaded guilty in June 2019 to the offense of
conspiracy to distribute and possess with intent to distribute heroin, in contravention of 21
U.S.C. § 846; plus a charge of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1);
and another charge of possession with intent to distribute heroin, in contravention of 21
U.S.C. § 841(a)(1). In August 2019, the probation office in the Eastern District of North
Carolina prepared Hill’s presentence report (the “PSR”). With an offense level of 24 and
a criminal history category of III, the PSR calculated a Guidelines sentencing range of 63
to 78 months.
At the sentencing hearing conducted in October 2019, the district court imposed an
above-Guidelines sentence of 120 months in prison. In so ruling, the court explained that
its 42-month upward variance was necessary due to the seriousness of Hill’s offense
conduct, in order to afford “adequate deterrence,” and also to “protect the public from
further crimes [by Hill], which [had] proved to be predictable” in light of his extensive
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criminal history. See J.A. 56. 1 In an appeal resolved in April 2021 by an unpublished
order, our Court vacated Hill’s 120-month sentence and remanded for resentencing. See
United States v. Hill, No. 19-4783 (4th Cir. Apr. 29, 2021), ECF No. 54. We therein
concluded that the sentencing court had erred by failing to orally pronounce all of Hill’s
supervised release conditions during the sentencing hearing, as required by our post-
sentencing decisions in United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), and United
States v. Singletary, 984 F.3d 341 (4th Cir. 2021).
During Hill’s resentencing proceedings in September 2021, Hill argued that a
within-Guidelines sentence (i.e., 63 to 78 months) should be imposed, given his age of 23
years and his ongoing rehabilitative efforts in prison. Nevertheless, the district court again
imposed an above-Guidelines sentence — this time for 12 months less than Hill’s initial
120-month sentence (that is, a sentence of 108 months). Taking into account the record of
Hill’s 2019 sentencing proceedings, the court related that “there’s . . . factually strong
support for an upward variance under [§] 3553(a).” See J.A. 74. And the court emphasized
that Hill continues to pose a “danger . . . to the community.” Id. Hill has timely noted this
appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
1
Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
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II.
In this appeal, Hill primarily maintains that his 108-month sentence is procedurally
and substantively unreasonable. 2 As explained further below, we disagree.
A.
Pursuant to the Supreme Court’s 2007 decision in Gall v. United States, a reviewing
court is obliged, in assessing the propriety of a particular sentence, to initially ensure that
the sentencing court committed no significant procedural error in imposing the sentence.
See 552 U.S. 38 (2007); see also United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020).
Such procedural error includes “improperly calculating[] the Guidelines range, . . .
selecting a sentence based on clearly erroneous facts, or failing to adequately explain” the
sentence. See Gall, 552 U.S. at 51. The Court’s Gall mandate of procedural reasonableness
also requires the sentencing court to weigh the factors specified in 18 U.S.C. § 3553(a).
2
We pause to observe that Hill pursues in this appeal two additional challenges with
respect to his sentence of 108 months. Specifically, Hill maintains that the district court
erroneously imposed certain Guidelines enhancements, and that the court also failed to
resolve factual disputes relating to those enhancements. The government argues in its
appellate brief that those Guidelines-related contentions are barred by Hill’s appeal waiver.
Although we previously concluded that those contentions fall outside the scope of the
appeal waiver, see United States v. Hill, No. 21-4468 (4th Cir. Mar. 4, 2022), ECF No. 23,
that discussion did not properly account for our 2016 decision in United States v.
McLaughlin, 813 F.3d 202 (4th Cir. 2016) (providing that defendant — with identical
appeal waiver — could not challenge applicable Guidelines range, but could yet appeal
procedural and substantive reasonableness of sentence in excess of range). In these
circumstances, we decline to address Hill’s Guidelines-related contentions, in that Hill’s
lawyer expressly abandoned those objections during the initial sentencing. See J.A. 34-35;
see also J.A. 67 (advocating for within-Guidelines sentence at resentencing). And because
those Guidelines-related contentions were waived, we are not entitled to review them. See
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014) (recognizing that waived
claims are not entitled to appellate review, “even for plain error”).
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If a sentence is found to be procedurally sound, the reviewing court must then
consider the sentence’s substantive reasonableness, applying a “deferential abuse-of-
discretion standard.” See Gall, 552 U.S. at 52. In that regard, Gall recognizes that,
although the explanation provided by the sentencing court must “support the degree of the
variance,” the court need not find “extraordinary circumstances” to justify a deviation from
the Guidelines. Id. at 47, 50. Notably, according to the Supreme Court, the sentencing
courts are “in a superior position to find facts and judge their import.” Id. at 51. As such,
substantive sentencing decisions — even those “significantly outside the Guidelines range”
— are to be given “due deference.” Id. at 41.
B.
Against this legal backdrop, we are called upon to assess the propriety of Hill’s
above-Guidelines sentence of 108 months. And after careful consideration of the record
on appeal, the appellate briefs of the parties, and the oral argument of counsel, we are
satisfied that Hill’s 108-month sentence is procedurally and substantively reasonable.
1.
As to the matter of procedural reasonableness, the district court adequately and
properly assessed the § 3553(a) factors and explained its reasons for imposing an above-
Guidelines sentence. To that end, the court provided an “individualized assessment” of the
facts underlying Hill’s prosecution that was “based on the [specific] characteristics of the
defendant.” See United States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017). And that
individualized assessment properly took into account the 2019 sentencing proceedings as
to Hill. Cf. Chavez-Mesa v. United States, 138 S. Ct. 1959, 1967 (2018) (recognizing that
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sentencing court may consider “record as a whole” in sentence-modification situation).
Additionally, the court at Hill’s resentencing proceedings in 2021 addressed and
considered the mitigation arguments raised and pursued by Hill and his lawyer. See Pepper
v. United States, 562 U.S. 476, 490-91 (2011) (recognizing that at resentencing, district
court can consider evidence of defendant’s rehabilitation since initial sentencing). And the
court balanced those mitigation contentions against Hill’s offense conduct, his extensive
criminal history involving multiple felonies, and the judicial system’s obligation to protect
the public interest. On this record, Hill’s challenged sentence is procedurally reasonable.
2.
Finally, we must assess whether Hill’s 108-month sentence is substantively
reasonable. As heretofore specified, the sentencing decisions of a district court are entitled
to “due deference.” See Gall, 552 U.S. at 51. To that end, in a variance situation, “a district
court’s explanation for the sentence must support the degree of the variance.” See United
States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017). Importantly, however, the sentencing
court “need not find extraordinary circumstances to justify a deviation from the
Guidelines.” Id. Put most simply — although the court in this situation might have
provided a more thorough explanation of its sentencing decision — the court adequately
explained the underlying rationale for the upward variance that it imposed. As a result, we
are obliged to give that sentencing decision “due deference.” See Gall, 552 U.S. at 51. In
these circumstances, Hill’s challenged sentence is also substantively reasonable.
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III.
Pursuant to the foregoing, we reject Hill’s challenges to his sentence and affirm the
district court.
AFFIRMED
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