US v. Terry Hyder
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00070-MR-1 Copies to all parties and the district court/agency. [999003571].. [12-4220]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY SCOTT HYDER, a/k/a Ryan Terry Hyder, a/k/a Ryan Fred
Wilson,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00070-MR-1)
Submitted:
November 30, 2012
Decided:
December 17, 2012
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Melissa L.
Rikard, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following his guilty plea to wire fraud, in violation
of
18
U.S.C.A.
§ 1343
(West
Supp.
2012),
the
district
court
sentenced Terry Scott Hyder to eighty-four months’ imprisonment,
which
reflected
advisory
a
twenty-one-month
Guidelines
range.
On
variance
appeal,
above
Hyder
substantive reasonableness of this sentence.
Hyder’s
challenges
the
For the reasons
that follow, we affirm.
We review any criminal sentence, “whether inside, just
outside,
or
significantly
reasonableness,
standard.”
“under
outside
a
the
Guidelines
deferential
range,”
for
abuse-of-discretion
United States v. King, 673 F.3d 274, 283 (4th Cir.),
cert. denied, 81 U.S.L.W. 3164 (U.S. Oct. 1, 2012) (No. 1110786); see Gall v. United States, 552 U.S. 38, 51 (2007).
evaluating
a
sentence
for
substantive
When
reasonableness,
we
consider whether the sentencing court abused its discretion in
concluding
that
the
sentencing
factors
relevant
18
supported
the
U.S.C.
§
3553(a)
selected
(2006)
sentence
“and
justified a substantial deviation from the Guidelines range.”
Gall, 552 U.S. at 56.
When
variance
the
sentence,
district
“we
court
consider
imposes
whether
the
a
departure
sentencing
or
court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
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the
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sentencing
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range.”
United
States
v.
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
Hernandez-
The district
court “has flexibility in fashioning a sentence outside of the
Guidelines range,” and need only “‘set forth enough to satisfy
the
appellate
court
that
it
has
considered
the
parties’
arguments and has a reasoned basis’” for its decision.
United
States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.) (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)) (alteration
omitted), cert. denied, 131 S. Ct. 2946 (2011).
We
discern
no
abuse
of
discretion
in
the
district
court’s decision to vary upward from Hyder’s advisory Guidelines
range to impose an eighty-four-month sentence.
Having sustained
one of Hyder’s objections to the calculation of his advisory
Guidelines
range,
Hyder’s
months’ imprisonment.
revised
sentencing
range
was
51-63
The district court first opined that this
range did not adequately reflect the seriousness of the offense.
Specifically, Hyder’s scheme defrauded multiple victims of more
than $775,000.
Four of Hyder’s victims were over the age of
seventy, and the youngest victims were in their mid-fifties.
Also
supporting
that
the
to
that
involved in Hyder’s prior federal mail fraud conviction.
The
conduct
the
underlying
upward
this
variance
offense
was
was
the
very
fact
similar
court was also vexed by the fact that Hyder was serving his term
of
supervised
release
for
the
mail
3
fraud
offense
during
the
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instant offense conduct.
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Thus, the court surmised, the fifty-
six-month sentence Hyder received on the mail fraud conviction
did not have a sufficient deterrent effect and a longer period
of incarceration was necessary to adequately deter Hyder from
future fraudulent conduct and to protect the public.
In
summary,
eighty-four-month
the
district
sentence
was
court
necessary
concluded
that
pursuant
to
a
the
relevant § 3553(a) factors, which included the seriousness of
the offense, § 3553(a)(2)(A); the history and characteristics of
the defendant, § 3553(a)(1); and the need to both protect the
public
and
deter
§ 3553(a)(2)(B),
future
(C).
criminal
Because
conduct.
the
district
18
U.S.C.
court
amply
justified both its variance decision and the extent thereof, we
conclude there was no abuse of discretion.
Hyder contends that the district court’s reliance on
these sentencing factors was unreasonable, though, because they
were already accounted for in the calculation of his advisory
Guidelines
explained,
range.
We
post-Booker *
disagree.
As
Supreme
Court
the
Fifth
precedent
Circuit
permits
has
a
sentencing court to “rely upon factors already incorporated by
the Guidelines to support a non-Guidelines sentence.”
United
States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008) (citing
*
United States v. Booker, 543 U.S. 220 (2005).
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United States v. Williams, 517 F.3d 801, 810-11 & n.5 (5th Cir.
2008)); accord United States v. Williams, 526 F.3d 1312, 1323–24
(11th Cir. 2008).
For these reasons, we affirm the criminal judgment.
We
dispense
with
oral
argument
because
the
facts
and
legal
contentions are adequately presented in the material before this
court and argument would not aid the decisional process.
AFFIRMED
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