US v. Nancy Dyal

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-01169-CMC-1 Copies to all parties and the district court/agency. [999111759].. [12-4908]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4908

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NANCY ELIZABETH DYAL,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Cameron McGowan Currie, District
Judge. (3:09-cr-01169-CMC-1)

Submitted:

May 8, 2013

Decided:

May 21, 2013

Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

H. Wesley Kirkland, Jr., KIRKLAND & RUSH, Columbia, South
Carolina, for Appellant.
William N. Nettles, United States
Attorney, Nathan S. Williams, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Nancy

Elizabeth

Dyal

appeals

her

nine-month,

below-

Guidelines sentence imposed following remand for convictions of
conspiracy to violate the Animal Welfare Act and to engage in an
illegal

gambling

conducting

an

illegal gambling business and aiding and abetting the same.

On

appeal,

by

Dyal

business

argues

(1)

and

two

that

counts

the

of

district

court

erred

sentencing her to an active term of incarceration when the court
sentenced her co-defendants, Wayne and Sheri Hutto, to terms of
probation; and (2) that her sentence is greater than necessary
to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2)
(2006).

Finding no error, we affirm.
This court reviews a sentence, “whether inside, just

outside, or significantly outside the Guidelines range[,] under
a

deferential

States,

552

abuse-of-discretion
U.S.

consideration

of

38,

41

both

standard.”

(2007).
the

procedural

reasonableness of the sentence.
procedural

reasonableness,

factors,

whether

factors.

Id.

the
at

court

court
When

and

United

requires

substantive

In determining

examines,

considered

reviewing

v.

review

Id. at 51.

this

district

49-51.

This

Gall

a

among
the

other

§ 3553(a)

sentence

for

substantive reasonableness, this court examines “the totality of
the circumstances, including the extent of any variance from the
Guidelines range.”

Id. at 51.
2

If the sentence is below the

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calculated

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Guidelines
that

the

this

sentence

court
is

applies

a

presumption

on

reasonable.

United States v. Susi, 674 F.3d 278, 289 (4th Cir.

2012).

appeal

range,

substantively

Such a presumption is rebutted only if the defendant

shows “that the sentence is unreasonable when measured against
the § 3553(a) factors.”
F.3d

375,

379

(4th

United States v. Montes-Pineda, 445

Cir.

2006)

(internal

quotation

marks

omitted).
One of the factors a court must consider when imposing
a

sentence

is

“the

need

to

avoid

unwarranted

sentence

disparities among defendants with similar records who have been
found guilty of similar conduct.”

18 U.S.C. § 3553(a)(6).

This

court has recognized, however, that this sentencing factor is
aimed primarily at eliminating national sentencing inequity, not
differences

between

the

sentences

of

co-defendants.

United

States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); see also
United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007)
(collecting

cases).

Moreover,

a

“district

court[]

ha[s]

extremely broad discretion when determining the weight to be
given each of the § 3553(a) factors.”

United States v. Jeffery,

631 F.3d 669, 679 (4th Cir. 2011).
Here, although not obligated to do so, the district
court took into account the disparity between Dyal’s sentence
and the Huttos’ sentences but found that the disparity was not
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“unwarranted” due to Wayne Hutto’s terminal illness and Sheri
Hutto’s role as his primary caregiver.

See Simmons, 501 F.3d at

624 (giving sentencing court discretion to consider sentencing
discrepancies

between

co-defendants).

Moreover,

we

conclude

that the court gave due consideration to the other § 3553(a)
factors and Dyal’s own unique circumstances when imposing her
below-Guidelines sentence.

See United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (“When rendering a sentence, the
district court must make an individualized assessment based on
the

facts

presented.”

(internal

quotation

marks

omitted)).

Accordingly, we conclude that the district court did not err by
sentencing Dyal to an active term of incarceration when her codefendants were sentenced to terms of probation.
Moreover, Dyal contends that a term of probation would
better

serve

overcome

the

the

appellate

her sentence.
F.3d

at

purposes

of

§ 3553(a)(2),

presumption

of

but

she

reasonableness

fails

to

afforded

See Susi, 674 F.3d at 289; Montes-Pineda, 445

379.

The

district

court

carefully

considered

the

§ 3553(a) factors and determined that, while Dyal had a fairly
significant
history
variance.

and

role

in

the

physical
Thus,

we

offense,

her

infirmities
conclude

that

lack

of

warranted
Dyal’s

prior

criminal

the

downward

carefully

crafted

sentence was not greater than necessary to accomplish the goals
of 18 U.S.C. § 3553(a)(2).
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Accordingly, we affirm the district court’s judgment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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