US v. Sherman Godwin


UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. Sherman Godwin Doc. 0 Case: 09-4847 Document: 27 Date Filed: 12/28/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4847 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHERMAN GODWIN, Defendant - Appellant.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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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

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