US v. Sherman Godwin
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cr-00350-FL-1 Copies to all parties and the district court/agency. [998492014] [09-4847]
US v. Sherman Godwin
Doc. 0
Case: 09-4847 Document: 27
Date Filed: 12/28/2010
Page: 1
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4847 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHERMAN GODWIN, Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00350-FL-1) Submitted: November 30, 2010 Decided: December 28, 2010
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.
Dockets.Justia.com
Case: 09-4847 Document: 27
Date Filed: 12/28/2010
Page: 2
PER CURIAM: Sherman possession of a Jermarr firearm Godwin by a pled guilty to 18 unlawful U.S.C.
convicted
felon,
§ 922(g)(1) (2006), and was sentenced to a term of seventy-one months range. court imprisonment, a variance above the advisory guideline
Godwin appeals his sentence, arguing that the district committed significant procedural error by failing to
consider an upward departure before imposing a variance sentence above the guideline range under 18 U.S.C. § 3553(a) (2006). For
the reasons explained below, we vacate the sentence and remand for resentencing. The presentence report did not identify any factor
that might warrant a sentence outside the guideline range of 3746 months and, at sentencing, both parties requested a sentence within the range. However, the district court decided to impose
a variance sentence above the range for reasons that focused heavily on Godwin's criminal record and the lenient treatment he had previously received. stated After that the sentence was imposed, to a
Godwin's departure.
attorney
the
sentence
amounted
The district court disagreed, explaining that it had
considered the guidelines and the § 3553(a) sentencing factors, but that Godwin's record and the need to protect the public required a sentence above the guideline range. immediately lodged an objection. 2 Defense counsel
Case: 09-4847 Document: 27
Date Filed: 12/28/2010
Page: 3
We review a sentence, "whether inside, just outside, or significantly outside the Guidelines standard." range," Gall under v. a
"deferential
abuse-of-discretion
United
States, 552 U.S. 38, 41 (2007). must first ensure "that the
In conducting this review, we district court committed no
significant procedural error, such as failing to calculate (or improperly Guidelines calculating) as mandatory, the Guidelines to range, treating the § the
failing
consider
3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence[.]" 51. Id. at
If the sentence is free from procedural error, this court Id. Because
then reviews it for substantive reasonableness.
Godwin objected in the district court to the above-guideline sentence, he has preserved the issue for appeal. United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
Thus, if a
procedural error occurred, reversal may be appropriate unless the error was harmless. Id.
Godwin relies on published authority from this court which states that, before varying from the guideline range, the sentencing court must first determine whether a departure is warranted under the guidelines and, if so, vary only if the departure is inadequate to achieve a reasonable sentence. See
United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006); see also United States v. Fancher, 513 F.3d 424, 427 n.1 (4th 3
Case: 09-4847 Document: 27
Date Filed: 12/28/2010
Page: 4
Cir.) (citing Moreland), abrogated in part by Irizarry v. United States, 553 U.S. 708 (2008) (holding that variance does not
require prior notice).
He acknowledges that a later argued but
unpublished Fourth Circuit case suggests that this process may not be necessary after Gall, citing United States v. Hawes, 309 F. App'x 726, 732 n.2 (4th Cir. 2009). The government, also citing Hawes, argues that the
procedure set out in Moreland is no longer necessary because it is inconsistent with Gall. on United States v. Evans, Principally, the government relies 526 F.3d 155 (4th Cir.), cert.
denied, 129 S. Ct. 476 (2008), which held that a sentence above the guideline range may or be "on based other on either the guidelines at 164.
"departure
provisions"
factors."
Id.
Evans is distinguishable because the district court in Evans found a sentence above the range justified both as a departure (under several guideline departure provisions) and a variance under § 3553(a). Although in this case the district court focused on Godwin's prior crimes and lenient treatment in the state courts as the primary basis for the variance, the court did not
consider whether a departure under U.S. Sentencing Guidelines Manual achieve § 4A1.3, a p.s. (2008), would have been the sufficient court did to not
reasonable
sentence.
Because
consider a departure, it avoided having to either give advance 4
Case: 09-4847 Document: 27
Date Filed: 12/28/2010
Page: 5
notice to Godwin or continue the hearing so that he could be prepared to contest a departure. 2203. See Irizarry, 128 S. Ct. at
The court also avoided having to follow the incremental
departure procedure required under United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992). prejudiced Because by the court's requires To this extent, Godwin was to consider court a to departure. consider a
failure the
Moreland
district
departure before it considers a variance, the court's failure to do so constituted a significant procedural error. The
government has not shown that the error was harmless. We therefore vacate the sentence imposed by the
district court and remand for resentencing. oral argument because in the the facts and legal
We dispense with contentions the court are and
adequately
presented
materials
before
argument would not aid the decisional process.
VACATED AND REMANDED
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?