US v. Ronnie Howard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00053-1 Copies to all parties and the district court/agency. [999752914].. [15-4533]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4533

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNIE ALVIN HOWARD,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:15-cr-00053-1)

Submitted:

January 29, 2016

Decided:

February 10, 2016

Before MOTZ, AGEE, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Christian M. Capece, Federal Public Defender, Lex A. Coleman,
Assistant Federal Public Defender, Jonathan D. Byrne, Research &
Writing Specialist, Charleston, West Virginia, for Appellant.
R. Booth Goodwin II, United States Attorney, Jennifer Rada
Herrald, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ronnie Alvin Howard pled guilty to failing to register as a
sex offender, in violation of 18 U.S.C. § 2250 (2012).

The

district court sentenced him to 21 months’ imprisonment to be
followed by 10 years’ supervised release.

Howard appeals this

sentence, contending that the district court erred by upwardly
departing from the applicable Sentencing Guidelines range for
his term of supervised release without providing him with the
notice. 1

requisite

We

agree,

and

therefore

vacate

in

part

Howard’s sentence.
We

review

reasonableness,
standard.”

a

sentence

applying

for

“a

procedural

deferential

and

substantive

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41 (2007).

In

determining procedural reasonableness, we consider whether the
district

court

properly

calculated

the

applicable

advisory

Guidelines range, gave the parties an opportunity to argue for
an

appropriate

(2012)

factors,

sentence.
“[I]f

sentence,
and

considered

sufficiently

the

18

U.S.C.

explained

the

§ 3553(a)
selected

Id. at 49-51.
a

party

repeats

on

appeal

a

claim

of

procedural

sentencing error . . . which it has made before the district

1

Howard does not challenge his within-Guidelines sentence
of 21 months’ imprisonment.

2

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court, we review for abuse of discretion.
abuse,

we

harmless.”
2010).

reverse

unless

we

conclude

If we find such

that

the

error

was

United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

Offering Ҥ 3553 arguments in the district court for a

different sentence than the one he received” is sufficient to
“preserve[]

[the

defendant’s]

error on appeal.”

claim

of

procedural

sentencing

Id. at 581.

Howard contends the district court’s sentence of 10 years’
supervised
court

release

failed

to

was

procedurally

provide

the

unreasonable

requisite

notice

because
that

it

the
was

considering a departure from the applicable Guidelines range.
Because

Howard

argued

for

a

five-year

term

release, we review for an abuse of discretion.
Howard

has

discretion

demonstrated
by

failing

that
to

the

district

provide

notice

of

supervised

We conclude that
court
of

abused

its

its

intended

departure, as required by Fed. R. Crim. P. 32(h).
Unless the Government can “demonstrat[e] that the error was
harmless, i.e. that it did not have a substantial and injurious
effect

or

influence

on

the

result,”

we

must

sentence and remand to the district court.
585 (internal quotation marks omitted).

vacate

Howard’s

Lynn, 592 F.3d at

We conclude that the

Government has failed to demonstrate harmlessness.

We reject

the Government’s contention that the 10-year term of supervised
release was a variance and thus did not require notice.
3

See

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Irizarry

v.

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United

States,

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553

U.S.

708,

713-14

(2008)

(distinguishing notice requirements for variance and departure).
At

Howard’s

sentencing

hearing,

the

increased

sentence

was

characterized only as a departure and not as a variance; such
unambiguous

oral

pronouncement

controls.

United

States

v.

term

of

Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).
Accordingly,
imprisonment,

although

we

vacate

we

affirm

Howard’s

the

supervised

21-month
release

term

and

remand for resentencing as to the term of supervised release. 2
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 IN PART,
VACATED IN PART,
AND REMANDED

2

By this disposition we express no opinion as to
appropriateness of a departure or variance on remand if
required procedures are observed.

4

the
the