United States v. Ronnie Howard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4533
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNIE ALVIN HOWARD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:15-cr-00053-1)
Submitted: January 29, 2016 Decided: February 10, 2016
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Christian M. Capece, Federal Public Defender, Lex A. Coleman,
Assistant Federal Public Defender, Jonathan D. Byrne, Research &
Writing Specialist, Charleston, West Virginia, for Appellant.
R. Booth Goodwin II, United States Attorney, Jennifer Rada
Herrald, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronnie Alvin Howard pled guilty to failing to register as a
sex offender, in violation of 18 U.S.C. § 2250 (2012). The
district court sentenced him to 21 months’ imprisonment to be
followed by 10 years’ supervised release. Howard appeals this
sentence, contending that the district court erred by upwardly
departing from the applicable Sentencing Guidelines range for
his term of supervised release without providing him with the
requisite notice. 1 We agree, and therefore vacate in part
Howard’s sentence.
We review a sentence for procedural and substantive
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In
determining procedural reasonableness, we consider whether the
district court properly calculated the applicable advisory
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Id. at 49-51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
1Howard does not challenge his within-Guidelines sentence
of 21 months’ imprisonment.
2
court, we review for abuse of discretion. If we find such
abuse, we reverse unless we conclude that the error was
harmless.” United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010). Offering Ҥ 3553 arguments in the district court for a
different sentence than the one he received” is sufficient to
“preserve[] [the defendant’s] claim of procedural sentencing
error on appeal.” Id. at 581.
Howard contends the district court’s sentence of 10 years’
supervised release was procedurally unreasonable because the
court failed to provide the requisite notice that it was
considering a departure from the applicable Guidelines range.
Because Howard argued for a five-year term of supervised
release, we review for an abuse of discretion. We conclude that
Howard has demonstrated that the district court abused its
discretion by failing to provide notice of its intended
departure, as required by Fed. R. Crim. P. 32(h).
Unless the Government can “demonstrat[e] that the error was
harmless, i.e. that it did not have a substantial and injurious
effect or influence on the result,” we must vacate Howard’s
sentence and remand to the district court. Lynn, 592 F.3d at
585 (internal quotation marks omitted). We conclude that the
Government has failed to demonstrate harmlessness. We reject
the Government’s contention that the 10-year term of supervised
release was a variance and thus did not require notice. See
3
Irizarry v. United States, 553 U.S. 708, 713-14 (2008)
(distinguishing notice requirements for variance and departure).
At Howard’s sentencing hearing, the increased sentence was
characterized only as a departure and not as a variance; such
unambiguous oral pronouncement controls. United States v.
Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).
Accordingly, although we affirm the 21-month term of
imprisonment, we vacate Howard’s supervised release term and
remand for resentencing as to the term of supervised release. 2
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
2By this disposition we express no opinion as to the
appropriateness of a departure or variance on remand if the
required procedures are observed.
4