UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENDRICK BAHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (2:06-cr-00001-F)
Submitted: January 4, 2007 Decided: January 30, 2007
Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendrick Baham appeals his sentence of 60 months’ imprisonment
for escaping from an institutional facility in which he was
lawfully confined for a felony conviction, in violation of 18
U.S.C.A. § 751(a) (West 2000 & Supp. 2006). Baham contends that
the district court imposed an unreasonable sentence when it varied
upwardly from the advisory guidelines range. Because the district
court did not follow the required procedure for imposing a variance
sentence, we vacate Baham’s sentence and remand for resentencing.
I.
The facts of this case are undisputed. On August 18, 2005,
Baham was sentenced to 120 months’ imprisonment after pleading
guilty to possessing a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C.A. § 924(c)(1)(A)(iii) (West 2000
& Supp. 2006). He was housed at the Washington County Jail in
Plymouth, North Carolina while awaiting transfer to a federal
correctional facility.
Baham and another inmate escaped from the Washington County
Jail on October 6, 2005. The escapees used a piece of metal from
a vent to cut through a sheetrock wall and remove a steel plate
covering a window. They then used a loose brick from the wall to
break the window and lowered themselves three stories to the ground
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with a rope made of bed sheets. Baham was arrested without
incident on October 7, 2005.
As a result of the escape, Baham was charged in a one-count
indictment with escaping from an institutional facility in which he
was lawfully confined for a felony conviction, in violation of 18
U.S.C.A. § 751(a). He pleaded guilty to the charge on April 10,
2006.
At sentencing, the district court adopted the findings of the
presentence report (PSR). The PSR computed Baham’s total offense
level at 15. Baham had 15 criminal history points, which placed
him in criminal history category VI. The offense level of 15 and
criminal history category of VI resulted in an advisory guidelines
range of 41 to 51 months’ imprisonment. The PSR noted that the
court might wish to consider an upward departure pursuant to U.S.
Sentencing Guidelines Manual § 4A1.3 (2005) on the basis that the
extent and nature of the defendant’s past criminal history resulted
in a criminal history category that underrepresented the
seriousness of his criminal history and the likelihood that he
would commit future crimes.
During the sentencing hearing, Baham’s counsel argued for a
sentence at the low end of the advisory guidelines range, while the
Government recommended a sentence at the high end of the range.
The district court, however, exercised its discretion to impose a
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variance sentence of 60 months’ imprisonment.1 The district court
emphasized the seriousness of Baham’s criminal history, which
included “shooting at a law enforcement officer” and wounding the
driver of the car in which Baham had been riding. (J.A. at 34.)
The district court indicated that it had considered the advisory
guidelines range, the other relevant factors set forth in the
Guidelines, and the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2006). It found that the advisory guidelines
range did “not adequately reflect the seriousness of [Baham’s]
present conduct, his past criminal conduct, his history of similar
misconduct or the likelihood that [he would] commit future crimes.”
(J.A. at 35.) Accordingly, the district court found that “a more
lengthy period of incarceration would meet the sentencing
objectives of deterrence, rehabilitation, just punishment and
incapacitation.” (J.A. at 35-36.) The district court offered no
further explanation as to why a 60 month sentence better served the
objectives of sentencing, nor did the court consider a traditional
departure based on Guideline § 4A1.3.
Baham timely noted an appeal to this court. We have
jurisdiction pursuant to 18 U.S.C.A. § 3742 (West 2000 & Supp.
2006) and 28 U.S.C.A. § 1291 (West 2006).
1
The district court also imposed a three-year term of
supervised release and ordered Baham to pay the Washington County
Jail $3,400 in restitution.
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II.
We review the sentence imposed for reasonableness. United
States v. Booker, 543 U.S. 220, 261 (2005). In determining whether
a sentence is reasonable, we review the district court’s legal
conclusions de novo and its factual findings for clear error.
United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
Post-Booker, a sentencing court must engage in a multi-step
process that begins with correctly determining the defendant’s
guideline range. United States v. Moreland, 437 F.3d 424, 432 (4th
Cir. 2006). “Next, the court must determine whether a sentence
within that range . . . serves the factors set forth in § 3553(a)
and, if not, select a sentence [within statutory limits] that does
serve those factors.” Id. (alterations in original) (internal
quotation marks omitted). “In doing so, the district court should
first look to whether a departure is appropriate based on the
Guidelines Manual or relevant case law.” Id. If it is
appropriate, the court may depart; if the “departure range still
does not serve the factors set forth in § 3553(a), the court may
then elect to impose a non-guideline sentence (a ‘variance
sentence’).” Id. As part of this process, “[t]he district court
must articulate the reasons for the sentence imposed, particularly
explaining any departure or variance from the guideline range.”
Id.
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A district court’s mandate “is to impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes of § 3553(a)(2).” United States v. Davenport, 445 F.3d
366, 370 (4th Cir. 2006) (internal quotation marks omitted).
“Reasonableness is the appellate standard of review in judging
whether a district court has accomplished its task.” Id.
(emphasis in original) (internal quotation marks omitted).
Ultimately,
[T]he overarching standard of review for unreasonableness
will not depend on whether we agree with the particular
sentence selected, but whether the sentence was selected
pursuant to a reasoned process in accordance with law, in
which the court did not give excessive weight to any
relevant factor, and which effected a fair and just
result in light of the relevant facts and law.
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (internal
citation omitted). Thus, reasonableness review involves both
procedural and substantive components. Moreland, 437 F.3d at 434.
A sentence will be procedurally unreasonable, for example, if the
district court provides an inadequate statement of reasons. Id.
Baham argues that his sentence is both procedurally and
substantively unreasonable. He contends that (1) the district
court offered an inadequate statement of reasons and erred by not
first considering a departure under the Guidelines before imposing
a variance sentence and (2) that the record does not support the
district court’s finding that a variance was warranted because
Baham’s criminal history category substantially underrepresented
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the seriousness of his criminal history or the likelihood that he
would commit future crimes. Because we agree (and the Government
concedes) that the district court did not follow the required
procedure for imposing a variance sentence, we need not address
Baham’s second argument.
The Government concedes that the district court erred “by not
stating why it chose the particular sentence, or why a departure
sentence was not appropriate.” (Appellee’s Br. at 16.) The
Government argues, however, that Baham failed to object to the
court’s “use of the variance analysis” at sentencing, and that his
challenge to the procedure employed by the district court is
therefore reviewable only for plain error, not for reasonableness.
(Appellee’s Br. at 14.)2 We disagree. Baham adequately preserved
the issue for appeal by arguing that a sentence above the low end
of the advisory guidelines range was unwarranted. See United
States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (“The government
preserved its objection to the sentence by vigorously arguing for
a sentence within the Guidelines range throughout the sentencing
hearing.”); Fed. R. Crim. P. 51(b) (“A party may preserve a claim
2
Under the plain error standard of review, the defendant bears
the burden of making a threshold showing that (1) there was an
error; (2) the error was plain; and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 731-32
(1993). If the defendant makes such a showing, we may exercise our
discretion to correct the error, but should exercise that
discretion only if failure to correct the error would seriously
affect the fairness, integrity, or public reputation of the
proceedings. Id. at 732.
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of error by informing the court – when the court ruling or order
is made or sought - of the action the party wishes the court to
take, or the party’s objection to the court’s action and the
grounds for that objection.”).
Guideline § 4A1.3 provides for a standard upward departure if
“the defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3. The district court, however, did not consider a
departure under Guideline § 4A1.3 or explain why departing under
the Guidelines would prove inadequate. Baham’s sentence comes
within a guideline range that is two levels above the level that
corresponds to his advisory guidelines range. The Government
argues that any error is essentially harmless, because the district
court’s imposition of a 60 month sentence demonstrates that it
found that a sentence within the range immediately above Baham’s
calculated advisory guidelines range would be inadequate. The
record, however, contains no information indicating that the
district court in fact considered a sentence within the lower range
and no explanation of why such a sentence would be inappropriate.
See United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992) (“In
determining the extent of a departure based on inadequacy of
criminal history above Criminal History Category VI, the court
should move to successively higher categories only upon finding
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that the prior category does not provide a sentence that adequately
reflects the seriousness of the defendant’s criminal conduct.”).
Accordingly, we conclude that Baham’s sentence was unreasonable.
III.
In sum, we conclude that the district court erred by not
considering whether a departure under the Guidelines was
appropriate before imposing a 60 month variance sentence.
Accordingly, we vacate Baham’s sentence and remand for
resentencing.
VACATED AND REMANDED
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