US v. Richardson

Filing 920070511

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4817

UNITED STATES OF AMERICA, Plaintiff - Appellant, versus TAUHEEDAH RICHARDSON, Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcolm J. Howard, District Judge. (CR-02-60)

Argued:

February 1, 2007

Decided:

May 11, 2007

Before WILKINS, Chief Judge, and NIEMEYER and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Michael Gordon James, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Richard Clarke Speaks, Wilmington, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Tauheedah Richardson was convicted of conspiring to distribute and possessing with intent to distribute more than 50 grams of crack cocaine and an unspecified quantity of cocaine powder, in violation of 21 U.S.C. §§ 846, 841(a)(1). Applying the mandatory

Sentencing Guidelines, the district court sentenced Richardson on February 2, 2004, to a 324-month term of imprisonment. Because

that sentence violated Richardson's Sixth Amendment jury trial right, as subsequently determined in United States v. Booker, 543 U.S. 220, 244 (2005), we vacated the sentence and remanded the case for resentencing in accordance with Booker. See United States v.

Richardson, No. 03-4843, 2005 U.S. App. LEXIS, at *9-12 (4th Cir. April 15, 2005). At resentencing, the district court calculated the recommended Sentencing Guideline range to be 324 to 405 months, but imposed a 180-month term of imprisonment. The district court gave three (1) Richardson's

reasons for imposing the variance sentence:

"youthfulness" at the time of the criminal conduct; (2) her good character prior to becoming the girlfriend of one of the principal members of the drug conspiracy; The and (3) her post-sentencing the variance

rehabilitative

efforts.

government

appeals

sentence, contending that the reasons given by the district court did not justify the extraordinary variance, and therefore the sentence imposed was unreasonable. We agree and accordingly remand

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for

resentencing,

but

we

do

not

rule

out

any

variance

as

unreasonable. Following Booker, we review sentences for reasonableness. Booker, 543 U.S. at 261. properly calculated "A sentence falling outside of the range is not ipso facto

Guidelines

unreasonable," United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006), for if a sentence within that range does not serve the sentencing factors set forth in § 3553(a), a court must "select a sentence that does serve those factors," id. at 456. The reasons

for the variance, therefore, "must be based on the factors listed in § 3553(a)," id., and the district court must "articulate the[se] reasons," United States v. Moreland, 437 F.3d at 432 (4th Cir. 2006). In reviewing a variance sentence, we consider "whether the district court acted reasonably with respect to (1) the imposition of a variance sentence, and (2) the extent of the variance." Moreland, 437 F.3d at 434. If the district court "provides an

inadequate statement of reasons[,] relies on improper factors," or gives "excessive weight to any relevant factor," the sentence "will be found unreasonable and vacated." Green, 436 F.3d at 457. Also,

"where the variance is a substantial one," such as here, "we must more carefully scrutinize the reasoning offered by the district court in support of the sentence," and "the farther the court

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diverges from the advisory guidelines range, the more compelling the reasons for divergence must be." In this case, the district Moreland, 437 F.3d at 434. court was impressed with

Richardson's good character prior to becoming the girlfriend of one of the conspiracy's principal members. The court saw in Richardson a person of good character with little criminal history (one conviction for use of a "simple worthless check" and one conviction for marijuana possession) whose present criminality was

substantially influenced by her romantic relationship with one of the conspiracy's principals. This conclusion was fortified by

Richardson's rehabilitative efforts between the first and second sentencing proceedings in this case. We conclude, however, that the reasons offered by the district court do not provide a basis sufficiently compelling to justify the substantial downward variance granted in this case -- a reduction of Richardson's sentence from a recommended range of 324 to 405 months to 180-months' imprisonment. See Moreland, 437 F.3d at 434. First, Richardson's prior good character, the effect of her personal relationship with a principal in the conspiracy on her criminal activities, and her lack of notable criminal record may relate to some § 3553(a) sentencing factors, but they are not so extraordinary as to provide a compelling basis on which to support a large variance.

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Second, the district court's reliance on Richardson's youth was misplaced. A district court is required to consider "any

pertinent policy statement issued by the Sentencing Commission." 18 U.S.C. § 3553(a)(5)(A). One such policy statement provides that "age (including youth) is not ordinarily relevant in determining whether a departure is warranted." U.S.S.G. § 5H1.1.

Third, the district court's reliance upon Richardson's postsentencing rehabilitative efforts was similarly misplaced. The

Sentencing Commission has issued a policy statement indicating that "post-sentencing undertaken by a rehabilitative defendant efforts, even if of exceptional, a term of

after

imposition

imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that offense." U.S.S.G. § 5K2.19. The discouraged sentencing factor of youthfulness and the inappropriate sentencing factor of postsentencing rehabilitative efforts cannot provide a "compelling" basis for a substantial variance. Finally, the district court failed to account for the

seriousness of Richardson's criminal conduct and to demonstrate how such a large variance would serve the primary purposes of

sentencing that are described in § 3553(a)(2)(A).

Richardson was

convicted for her participation in a wide-ranging, multi-year drug trafficking conspiracy based in New Bern, North Carolina. During

that time, she was the girlfriend of a principal member of the

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conspiracy.

The evidence presented at trial established that she

was extensively involved, demonstrating that she stored drugs; that she stored cash proceeds from drug sales; that she transported cocaine shipments from New York to North Carolina; that she

transported co-conspirators to drug sales; that she attended the conversion of powder cocaine into crack cocaine; that she

facilitated communication among her co-conspirators by transporting messages among them; that she obtained a firearm for her coconspirators; that she helped her co-conspirators evade arrests, including one who had committed murder; that she permitted the concealment of a murder weapon behind residence; and that she herself sold crack cocaine on occasion. substantial variance sentence imposed We conclude that the does not "reflect the

seriousness" of this conduct, "promote respect for the law" that was broken, nor "provide just punishment" for Richardson's See

prolonged entanglement with the drug trafficking conspiracy. 18 U.S.C. § 3553(a)(2)(A). For the reasons given, we vacate Richardson's

variance Our

sentence because the extent of the variance was unreasonable.

holding, however, does not deny the court discretion to impose a variance sentence as appropriate to support the sentencing factors found in § 3553(a). VACATED AND REMANDED

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