United States v. Simpson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4170

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHAD ERIC SIMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:01-cr-00189-MU)

Submitted: October 25, 2006 Decided: December 8, 2006

Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Chad Eric Simpson appeals the sentence he received after

we remanded his case for resentencing under United States v.

Booker, 543 U.S. 220 (2005). Simpson pled guilty to conspiracy to

traffic in cocaine, methamphetamine, and Ecstasy (Count One),

aiding and abetting a kidnapping (Count Two), and aiding and

abetting the brandishing of a firearm in violation of 18 U.S.C.

§ 924(c) (2000) (Count Six). Initially, he received concurrent

sentences of 210 months for the conspiracy and kidnapping, and a

consecutive seven-year sentence for the § 924(c) conviction, a

total sentence of 294 months imprisonment. On remand, the district

court imposed a sentence of 181 months for the conspiracy and

kidnapping, with a consecutive seven-year sentence, for a total of

265 months imprisonment. The sentence represents a downward

variance of twenty-nine months from the bottom of the guideline

range. Simpson contends on appeal that the sentence imposed on

remand violated the Sixth Amendment and was also unreasonable. We

affirm.

Simpson first maintains incorrectly that, following

Booker, facts that increase the offense level must be proved beyond

a reasonable doubt. The remedial portion of Booker specifically

rejected this approach. Booker, 543 U.S. at 246. After Booker,

the sentencing court continues to make factual findings concerning

sentencing factors by a preponderance of the evidence. United

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States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,

127 S. Ct. 121 (2006). In imposing a sentence post-Booker, courts

still must calculate the applicable guideline range, after making

the appropriate findings of fact, and consider the range in

conjunction with other relevant factors under the guidelines and 18

U.S.C. § 3553(a) (West 2000 & Supp. 2006). United States v.

Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006). The sentence must be within the statutorily

prescribed range and reasonable. United States v. Hughes, 401 F.3d

540, 547 (4th Cir. 2005).

Although Simpson concedes that the district court

“recognized the Guidelines as advisory,” he argues that the

sentence imposed on remand violated the Sixth Amendment because the

district court did not consider the factors set out in § 3553(a) in

determining his sentence, and thus apparently treated the

guidelines as mandatory. This argument is without merit. The

Sixth Amendment error that occurred at the first sentencing was

cured by Simpson’s resentencing under an advisory guideline scheme.

In resentencing Simpson after Booker, the district court explicitly

treated the guidelines as advisory. The court sentenced Simpson

only after considering the sentencing guidelines, the § 3553(a)

factors, and counsel’s arguments. Although the district court did

not recite facts to support each § 3553(a) factor, the court need

not “explicitly discuss every § 3553(a) factor on the record.”

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United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). There

is no doubt that the court considered the § 3553(a) factors because

the court determined that a variance sentence was appropriate based

on its consideration of the factor set out in § 3553(a)(6), that

is, “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct.”

Next, citing the objections to the presentence report he

filed before his first sentencing, Simpson contends that the

district court erred in finding (1) that the object of the

kidnapping was an attempt to kill the victim, (2) that the victim

was physically restrained and received permanent or life-

threatening injury, and (3) that Simpson was not entitled to a

minor role adjustment. In the first appeal, we did not address the

merits of Simpson’s challenge to these sentence enhancements. See

Hughes, 401 F.3d at 556 n.15 (appeals court need not address

claimed guideline calculation errors in every case before vacating

and remanding for resentencing under Booker). To the extent that

Simpson is renewing his challenge to the district court’s

calculation of the guideline range, we conclude that the court’s

findings were not clearly erroneous. The ultimate object of the

kidnapping was to kill the victim, Andy Wolagiewicz, as evidenced

by co-defendant Tommy Payseur’s order that Joshua Caldwell and

Thomas Lee, Jr., take Wolagiewicz into the woods and “do him,” and

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their subsequent attempt to cut Wolagiewicz’s throat. Failing

that, they stabbed him multiple times in the neck so that he would

bleed to death. Wolagiewicz was physically restrained when, after

he endured a beating lasting several hours, Simpson, Caldwell, and

Lee wrapped him in a sheet and plastic trash bags, put him in the

trunk of Simpson’s car, and transported him from North Carolina to

South Carolina, where the attempted murder took place. Although

Wolagiewicz survived, the district court did not clearly err in

finding that his injuries were life-threatening. Simpson had more

than a minor role in the offense because he took part in beating

Wolagiewicz, burned him with a heated knife, and drove the car in

which Wolagiewicz was transported to the site where the attempted

murder occurred.

Finally, Simpson argues that the court erred in finding

that the sentences received by those co-defendants who, like him,

were convicted of kidnapping, averaged 181 months imprisonment, and

that none of them received consecutive 84-month sentences.

According to the district court docket sheet, Payseur was sentenced

to 78 months for the kidnapping, and 84 months consecutive for the

§ 924(c) conviction; Lee received 87 months and a consecutive 84

months; and Caldwell received a sentence of 151 months and a

consecutive 84-month sentence.* Payseur, Lee, and Caldwell all

*
Payseur, Lee, and Caldwell did not plead guilty to
conspiracy. Michael Miller received a sentence of 151 months for
the drug conspiracy.

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received downward departures for substantial assistance. The

record does not reflect what their guideline ranges were before the

departures. Therefore, we cannot say, on this record, that the

district court erred in finding that the co-defendants’ average

sentence was 181 months. The court incorrectly stated that none of

the co-defendants received consecutive 84-month sentences, although

defense counsel had previously informed the court that they did.

The court’s misunderstanding on this point, however, likely

resulted in a lower sentence for Simpson, rather than a higher one,

and does not provide a basis for remanding the case for

resentencing.

Simpson contends that his sentence is unreasonable

because the district court did not indicate how it arrived at the

guideline range or which § 3553(a) factors it considered. He also

argues that his sentence is unreasonable by comparison with the

sentences imposed on his co-defendants. A post-Booker sentence may

be unreasonable for procedural and substantive reasons. “A

sentence may be procedurally unreasonable, for example, if the

district court provides an inadequate statement of reasons . . . .

A sentence may be substantively unreasonable if the court relies on

an improper factor or rejects policies articulated by Congress or

the Sentencing Commission.” Moreland, 437 F.3d at 434 (citations

omitted). While a district court must consider the various factors

in § 3553(a) and explain its sentence, it need not discuss every

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§ 3553(a) factor. Johnson, 445 F.3d at 345. Even if the sentence

exceeds the advisory guideline range, it will generally be deemed

reasonable “if the reasons justifying the variance are tied to §

3553(a) and are plausible.” Moreland, 437 F.3d at 434.

“[A] district court’s explanation should provide some

indication (1) that the court considered the § 3553(a) factors with

respect to the particular defendant; and (2) that it has also

considered the potentially meritorious arguments raised by both

parties about sentencing.” United States v. Montes-Pineda, 445

F.3d 375, 380 (4th Cir. 2006), petition for cert. filed, July 21,

2006 (No. 06-5439). “[I]n determining whether there has been an

adequate explanation, [the Court does] not evaluate a court’s

sentencing statements in a vacuum”; rather, “[t]he context

surrounding a district court’s explanation may imbue it with enough

content for [the Court] to evaluate both whether the court

considered the § 3553(a) factors and whether it did so properly.”

Id.

We conclude that the district court’s explanations of its

reasons for sentencing Simpson satisfied these standards. The

court made findings concerning the guideline range at the first

sentencing which were not challenged substantively at the

resentencing hearing. The record shows that the district court

considered the § 3553(a) factors in imposing the sentence, and

decided that a variance was appropriate because of the lower

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sentences imposed on Simpson’s co-defendants. The court imposed a

sentence that was twenty-nine months lower than the bottom of the

guideline range. Contrary to Simpson’s assertions, we conclude

that the variance sentence imposed by the district court was

“selected pursuant to a reasoned process in accordance with the

law.” United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert.

denied, 126 S. Ct. 2309 (2006). We further conclude that the

extent of the variance was reasonable. The reasons justifying the

variance are plausible and the district court’s explanation

provided sufficient indication that it considered the § 3553(a)

factors and considered the arguments both parties made at

sentencing. See Moreland, 437 F.3d at 434; Montes-Pineda, 445 F.3d

at 380.

Finally, Simpson maintains that the sentence violated the

Sixth Amendment because the district court adhered to the

sentencing enhancements made at the first sentencing hearing based

on its own fact findings, rather than on facts charged in the

indictment or admitted by Simpson. Simpson relies on United

States v. Milam, 443 F.3d 382, 387 (4th Cir. 2006) (holding that a

defendant’s failure to object to a recommendation in a presentence

report cannot be taken as an admission of facts underlying

recommendation). Milam does not apply in this case because,

although Simpson made no objections to the facts in the presentence

report on remand, the district court did not treat those facts as

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admitted. Instead, the court adhered to the findings of fact it

made at the first sentencing. Because the court treated the

guidelines as advisory, there was no constitutional error.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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