US v. Anthony Dillon
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY BERNARD DILLON, Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:04-cr-00456-WDQ-1)
October 30, 2009
December 9, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Vacated and remanded for resentencing by unpublished per curiam opinion.
ARGUED: Gary Allen Ticknor, Elkridge, Maryland, for Appellant. Judson T. Mihok, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Anthony Bernard Dillon pled guilty, pursuant to a written plea agreement, of 18 to fraudulent U.S.C. was use of an access Dillon's 30 to 37 device in
§ 1029(a)(5). at
imprisonment, but the district court departed upward sentencing him to 87 months of incarceration. On appeal, we vacated and remanded the sentence based on several procedural errors at
Dillon's first sentencing hearing. 251 Fed. Appx. 171, 173 (4th
See United States v. Dillon, 2007) (unpublished). At
resentencing, the district court again deviated upward from the suggested sentence. Guidelines Dillon range, this time imposing issues an 84-month to the We
procedural reasonableness in the imposition of his sentence.
exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Dillon's For the reasons and set forth to below, the we again vacate for
I. The Presentence Investigation Report ("PSR") in this case placed Dillon's base-offense level at 6. 1 After incorporating 2-
level increases for causing a loss exceeding $5,000, having 10 or more victims, stealing from a person, and using sophisticated means, as well as a 2-level reduction for acceptance of
responsibility, the PSR established an adjusted-offense level of 12. In combination with a criminal history category of VI, the
PSR yielded a suggested Guidelines range of 30 to 37 months' imprisonment. The PSR did not list any grounds for an upward
departure from the advisory Guidelines range. At the first sentencing proceeding, Dillon and the
Government requested the district court impose a sentence within the suggested Guidelines range. 2 The district court declined to
do so because of Dillon's extensive criminal history: You have, by my count, and discounting the drug conviction, 23 convictions in seven different states: Minnesota, Indiana, Florida, Ohio, Illinois, Texas, New York. You've used 29 aliases in your career, and although it is common, I suppose, these things, in theft cases, your case is an extraordinary one, in the geographic range of your theft activities, and over
Dillon pled guilty to credit card fraud in violation of 18 U.S.C. § 1029(a)(5) after authorities located stolen credit and bank cards, counterfeiting materials, and various stolen goods and identification documents in his possession. Dillon's plea agreement obligated the Government recommend a sentence within the advisory Guidelines range.
the period of time, you have convictions at the age of 18, 19, 21, 22, 24, 25, 26, 29, 30, 33, 36, 38, 39, each of these ages you've got convictions and some years multiple convictions, and I note that this offense was done when you were on parole for a robbery offense. Joint Appendix ("J.A.") at 51. Dillon's "appalling record" prompted the district court to conclude that an extended term of imprisonment was necessary to protect the public and to give Dillon the chance "to make
preparations in some fashion for a non criminal career." 51-52.
The district court then determined that to accomplish
that goal it would make an upward departure under the Guidelines from a criminal history category VI, offense level 12. The
court did not specifically reference U.S.S.G. § 4A1.3(a), but stated: "I am to going sentence to you depart at a upward Criminal in the advisory VI and
offense level 22.
I'm going to impose a sentence at the bottom That's a
of those [G]uidelines; that is an 87-month sentence. seven-year sentence." 3 Id. at 53.
There is some confusion as to whether the district court originally intended to impose a sentence of 84 or 87 months. As we explained in our first opinion in this case, the district court's "orally pronounced sentence was eighty-seven months" and "the orally pronounced sentence controls." Dillon, 251 Fed. Appx. at 172 n.1; see also United States v. Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965).
departing upward without providing prior notice, or following the "incremental approach" mandated by both § 4A1.3(a)(4)(B) and our precedent. that the See Dillon, 251 Fed. Appx. at 172-73. court "adequately stated its We held for
departing pursuant to § 4A1.3" and that "the departure was based on proper factors." Id. at 173.
However, we vacated Dillon's sentence because the district court failed to provide "either the incremental analysis
required by § 4A1.3 or the extensive justification required by dramatic departures." Id. (quotations omitted). On remand, we
stated the district court "should explain why category VI is inadequate, and `move incrementally down the sentencing table to the next higher offense level until it [found] a guideline range appropriate to the We case.'" provided this Id. (quoting U.S.S.G. the
district court "said nothing about how it determined the extent of the departure." 4 Id.
We also held that the district court erred in failing to give Dillon notice of its intent to depart from the suggested Guidelines range before it imposed sentence. See Dillon, 251 Fed. Appx. at 172-73; see also Fed. R. Crim. P. 32(h). Dillon does not raise any notice issue in the instant appeal and we consider none. See also Irizarry v. United States, 128 S. Ct. 2198, 2201-02 (2008).
commenced after the Supreme Court issued its decision in Gall v. United States, 552 U.S. 38 (2007). The district court initially
opined that, after Gall, "some of the considerations" we relied upon in remanding Dillon's case for resentencing were "perhaps no longer operative." J.A. at 64. Then, the court reaffirmed
its sentence was a departure under the Guidelines and noted the Fourth reasons Circuit for had confirmed and the that "I adequately was based stated on the
factors; however, there is some disagreement on the part of the Fourth Circuit with the degree or the magnitude of the
departure." the district
Id. at 65. court
Despite the direction of our mandate, mentioned U.S.S.G. § 4A1.3(a) or The
described an upward departure analysis under that section. district court' sentence and rationale was the following: I think, in reanalyzing the case under Gall, I come out the same place where I was when I imposed the original sentence; that is, Mr. Dillon, I commit you to serve a term of imprisonment of 84 months with the remaining conditions as imposed, and I do that in light of the numerous convictions in numerous jurisdictions which I detailed at the original sentencing, which was noted by the Court of Appeals in its decision. I incorporate from that original sentencing my reasoning. Id.
II. Under Gall, we review all sentences for reasonableness
under a "deferential abuse-of-discretion standard," regardless of whether the sentence selected by the district court is
"inside, just outside, or significantly outside" the suggested Guidelines range. this standard Gall, 552 U.S. at 41. a Appellate review under and a substantive
component. Cir. 2009).
See United States v. Heath, 559 F.3d 263, 266 (4th
To ensure a sentence is procedurally reasonable, we inquire whether the district court followed the correct path in reaching its selected sentence. Significant deviations from this path,
"such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range," require resentencing. U.S. at 51. Gall, 552
Compliance with these procedural requirements is
important because they ensure the district court gives "serious consideration to the extent of any departure from the
Guidelines," which are "the product of careful study based on extensive empirical evidence derived from the review of Only
thousands of individual sentencing decisions." 7
Id. at 46.
consider the substantive reasonableness of the district court's chosen sentence. (4th Cir. 2009). See United States v. Carter, 564 F.3d 325, 328
III. In this appeal, Dillon argues that his 84-month sentence is procedurally unreasonable because the district court effected a 10-level Guidelines departure without employing the "incremental approach" established by § 4A1.3(a)(4)(B) and did not follow the mandate of this Court as we instructed on remand. maintains his sentence that should he is be vacated to a as new Thus, Dillon procedurally sentencing
unreasonable hearing. 5
Dillon makes the alternative argument on appeal that even if the district court varied from the Guidelines at his second sentencing proceeding under the factors laid out in 18 U.S.C. § 3553(a), the district court did not sufficiently explain how it reached its chosen sentence. Because we vacate the sentence on other grounds, we do not address this contention. Dillon also argues that at least one of the district court's reasons for departing upward from the suggested Guidelines range is not supported by the record. Again, because we remand for resentencing on other grounds, we do not address this argument on appeal. See United States v. Passaro, 577 F.3d 207, 223 (4th Cir. 2009). Nothing in our decision should be construed to prevent Dillon from presenting these arguments to the district court on remand. See id.
A. The "same facts and analyses" may support "a Guidelines departure and a variance," but these concepts remain "distinct" even after the Supreme Court's decision in Gall. v. Grams, 566 F.3d 683, 687 (6th Cir. 2009). United States Indeed, the
Supreme Court explained in Irizarry v. United States, 128 S. Ct. 2198 (2008) that a "[d]eparture" is a "term of art" that refers to a non-Guidelines sentence "imposed under the framework set out in the Guidelines." 128 S. Ct. at 2202. A "variance," in
contrast, denotes a non-Guidelines sentence reached under the factors laid out in "18 U.S.C. § 3553(a)." Id. at 2203.
Whether the district court chooses to depart or vary from the suggested Guidelines range has "real consequences for an appellate court's review." 221, 226 (3d Cir. 2009). United States v. Brown, 578 F.3d The Supreme Court in Irizarry, for
example, held that Federal Rule of Criminal Procedure 32(h)'s notice requirement applies to departures, but not to variances. 6 See Irizarry, 128 S. Ct. at 2201-02. traditional Furthermore, departures the
Rule 32(h) requires the district court to give "the parties reasonable notice" if it intends to depart on a "ground not identified for departure either in the presentence report or in a party's prehearing submission." Fed. R. Crim. P. 32(h). The notice rendered under this section "must specify any ground on which the court is contemplating a departure." Id.
from -- and are more limited than -- the factors a court may look to in order to justify a post-Booker variance." United States
v. Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006); see also United States v. Chase, 560 F.3d 828, 830 (8th Cir. 20009); United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir. 2008). Because departures are thus "subject to different requirements than variances," United States v. Floyd, 499 F.3d 308, 311 (3d Cir. 2007), it is important for district courts to "`articulate whether a sentence is a departure or a variance from an advisory Guidelines range.'" Brown, 578 F.3d at 226 (quoting United
States v. Vampire Nation, 451 F.3d 189, 198 (3d Cir. 2006)). 7 The district court's intention to effect a departure at Dillon's initial sentencing proceeding is not in doubt, as the court explained that it would "depart upward in the advisory [G]uidelines to sentence [Dillon] at a Criminal History
[Category of] VI and offense level [of] 22" -- not the offense level of 12 contained in the PSR. J.A. at 53. On remand, the
district court gave no indication that it intended to sentence Dillon other than by the same upward departure. that "I adequately stated the reasons for The court noted and the
See Grams, 566 F.3d at 688 (remanding for resentencing based, in part, on the district court's failure to explain whether it departed or varied from the defendant's suggested Guidelines range).
departure was based on proper factors . . . and I incorporate from that original sentencing my reasoning." Id. at 65
(emphasis added). on its prior
The district court relied almost exclusively analysis Thus, it in is sentencing clear Dillon to 84
sentence is based on a Guidelines departure.
B. Having constitutes a confirmed departure that by Dillon's the 84-month court sentence from the
Guidelines range, we now turn to Dillon's contention that the district court erred in failing to follow the "incremental
approach" under U.S.S.G. § 4A1.3(a)(4)(B) as our precedent for upward departures from a criminal history category VI indicates and as our mandate directed. The "extent" of an upward
departure under § 4A1.3 is generally determined by reference to the criminal history category that "most closely resembles that of the defendant's." U.S.S.G. § 4A1.3(a)(4)(A). But a
different procedure is required where, as here, the defendant already possesses a criminal history category of VI -- the
maximum criminal history category established by the Guidelines. In that case, the Guidelines instruct the district court to move "incrementally down the sentencing table to the next higher
offense level in Criminal History Category VI until it finds a guideline range appropriate to the case." Id. § 4A1.3(a)(4)(B).
The district court, however, appeared to believe that the Supreme Court's decision in Gall obviated the need for it to follow the incremental procedure required by § 4A1.3(a)(4)(B), our precedent, and the mandate when sentencing based on an
This conclusion was in error.
In Gall, the Supreme Court addressed a variance imposed under the factors laid out in § 3553(a), not a departure
conducted pursuant to the Guidelines. 8
See United States v. Our precedent Guidelines
Autery, 555 F.3d 864, 872 n.7 (9th Cir. 2009). relating to the proper procedures for
departures when that is the procedure utilized by the district court Booker remains and unaltered by the Supreme cases. Court's See, decision e.g., in
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007); United States v. Rusher, 966 F.2d 868, 885 (4th Cir. 1992). As the
Tenth Circuit explained, "[w]hile Booker made application of the See Gall, 552 U.S. at 56 ("The Court of Appeals gave virtually no deference to the District Court's decision that the § 3553(a) factors justified a significant variance in this case."); id. at 59-60 ("[I]t is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient . . . . On abuse-of-discretion review, the Court of Appeals should have given due deference to the District Court's . . . decision that the § 3553(a) factors, on the whole, justified the sentence.").
sentencing [G]uidelines advisory rather [than] mandatory, it did not impact pre-existing law concerning the interpretation of any sentencing guideline or expand the availability of departures under the sentencing [G]uidelines." United States v. Beltran, Thus, when a district
571 F.3d 1013, 1019 (10th Cir. 2009).
court proceeds to impose a sentence based on the Guidelines, it must correctly follow the Guidelines to avoid an error of
procedural unreasonableness. The Supreme Court's sentencing cases simply establish that district courts have the "discretion to vary from the
[Guidelines] range if a variance" is appropriate under 18 U.S.C. § 3553(a). 9 development Id. of We discussed the Supreme for Court's recent the
Guidelines range in United States v. Evans, 526 F.3d 155 (4th Cir. 2008), in which we explained: Gall and Rita . . . firmly establish that although adherence to the advisory Guidelines departure provisions provides one way for a district court to fashion a reasonable sentence outside the Guidelines range, it is not the only way. Rather, after calculating the correct Guidelines range, if the district court determines that a sentence outside that range is appropriate, it may base its sentence on the Cf. United States v. Lofink, 564 F.3d 232, 240 n.17 (3d Cir. 2009) ("The Supreme Court has given wide latitude to district courts to vary from the Guidelines range under § 3553(a) . . . . But it has not extended that latitude to a district court's procedure for determining the advisory Guidelines range.").
Guidelines departure provisions or on other factors [i.e., the 18 U.S.C. § 3553(a) factors] so long as it provides adequate justification for the deviation. 526 F.3d at 164. Because the district court in this case chose
to make its sentence for Dillon as an upward departure under the Guidelines, not a variance or other factor as allowed by the Supreme Court's recent cases, the traditional rules for
Guidelines departures continued to apply. The district court thus procedurally erred in failing to conduct the "incremental analysis" required for departures
beyond a criminal history category of VI.
We do not "require a
sentencing judge to move only one" offense level at a time, rejecting "each and every intervening level" in turn. 477 F.3d at 199 (quotations omitted). Dalton,
We do, however, require
the district court to adequately explain its decision to deviate from the Guidelines range and the applicable Guidelines
requirements like U.S.S.G. § 4A1.3(a)(4).
See United States v. In
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
other words, the district court "must expressly articulate not only the legal and factual reasons for a departure, but also the logical United 2009). for the foundation States v. for the degree 568 of departure 1214 selected." (10th Cir.
Furthermore, the district court should tie its rationale extent of a particular departure to the Guidelines'
See United States v. Cash, 983 F.2d 558,
561 (4th Cir. 1992); see also U.S.S.G. § 4A1.3(a)(4). Moreover, the district court was not free to ignore our mandate. As noted above, its view that Gall voided the mandate
as to following U.S.S.G. § 4A1.3(a)(4)(B) was incorrect under the facts of this case. Accordingly, as our precedent clearly
holds, the district court was required to follow the direction of our mandate upon remand. 10 See, e.g., Invention Submission
Corp. v. Dudas, 413 F.3d 411, 414-15 (4th Cir. 2005). The district court sufficiently explained the legal and
factual bases for its decision to depart, see Dillon, 251 Fed. Appx. at 173, as we frequently approve upward deviations from the suggested Guidelines range based on a defendant's
intransigent recidivism. Evans, 526 F.3d at
See, e.g., Heath, 559 F.3d at 268; But a district court does not
fulfill its "explanatory duty merely by stating the bases for the departure;" it must also disclose its "reasons for the
sentence actually imposed."
Robertson, 548 F.3d at 1214-15; see
also United States v. Moreland, 437 F.3d 424, 432 (4th Cir. To the extent our prior decision directed the district court to provide an "extensive justification required by dramatic departures," Dillon, Fed. Appx. at 173, that proposition was negated by Gall. See 542 U.S. at 47 ("We reject . . . an appellate rule that requires `extraordinary' circumstances to justify a sentence outside the Guidelines range.").
Because the district court chose to base the sentence on
a Guidelines upward departure, it was necessary, as a matter of procedural reasonableness, that the district court follow the Guidelines' existing structure as required by § 4A1.3 and our precedent. "It is axiomatic that a district court commits
reversible procedural error when it fails to explain a departure or variance." Cir. 2009). We, therefore, vacate Dillon's sentence and remand for United States v. Passaro, 577 F.3d 207, 223 (4th
See United States v. Perez-Pena, 453 F.3d 236, In resentencing, the district court should
241 (4th Cir. 2006).
explain why category VI, offense level 12 is inadequate, "moving incrementally down the sentencing table to the next higher
offense level in . . . [c]ategory VI until it finds a guideline range appropriate to the case." also Dalton, 477 F.3d at 200 n.3. U.S.S.G. § 4A1.3(a)(4)(B); see
VACATED AND REMANDED FOR RESENTENCING
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