United States v. Gill

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4343

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PATRICK O’NEIL GILL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:05-cr-00055-BR)

Argued: March 13, 2007 Decided: May 23, 2007

Before WILKINSON and KING, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
Devon L. Donahue, Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Patrick O’Neil Gill appeals from his sentence of 271 months’

imprisonment, imposed as a result of his convictions in the Eastern

District of North Carolina for interference with commerce by

robbery, in contravention of 18 U.S.C. § 1951, and using a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c). Gill first contends that the sentencing court

erred in two of the upward departures it applied in imposing his

sentence, one for an uncharged attempted murder and the other for

unusually heinous and cruel conduct. Gill also maintains that his

sentence should be vacated because it is procedurally unreasonable.

As explained below, we reject each of the challenges to Gill’s

sentence and affirm.

On June 3, 2004, Patrick Gill entered a Community Mart

convenience store in Henderson, North Carolina. Abdalrahman Alsad,

the store’s owner, was working at the cash register. Gill strode

to the store’s checkout counter and, without uttering a word, shot

Alsad in the forehead at point-blank range. As Alsad slumped to

the floor, Gill went behind the counter, took some money from the

The bullet from Gill’s .25 caliber handgun entered the right

frontal region of Alsad’s brain and lodged in his posterior fossa,

3
near the back of his head. Alsad survived, but he was severely

injured. He spent more than a month in the University of North

Carolina Hospital, and suffers from permanent brain damage, major

speech impediments, and impaired vision. He also lost the use of

his left arm and was rendered nearly unable to walk. Due to these

injuries, Alsad was forced to sell the Community Mart and can no

longer support his wife and children.

On July 27, 2005, a grand jury in North Carolina’s eastern

district returned a three-count Superseding Indictment that charged

Gill with (1) interference with commerce by robbery, in

contravention of 18 U.S.C. § 1951 (“Count I”); (2) using a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c) (“Count II”); and (3) being a felon in possession

of ammunition, in contravention of 18 U.S.C. § 922(g)(1) (“Count

III”). On September 26, 2005, Gill pleaded guilty to Counts I and

II of the Superseding Indictment, and Count III was dismissed on

motion of the prosecution.

On December 8, 2005, the probation officer submitted her

Presentence Investigation Report (the “PSR”) regarding Gill’s

pending sentence. The PSR advised that, under the United States

Sentencing Guidelines (the “guidelines”), Gill had an offense level

of 23 and a criminal history category of II.1 Gill’s resulting

1
The 2005 version of the guidelines was used in connection
with Gill’s sentencing, and all citations herein to the guidelines
refer to that version.

4
guidelines range was 51 to 63 months on Count I and 120 months (the

statutory minimum) on Count II, for an overall range of 171 to 193

months’ imprisonment. The PSR also identified a number of possible

grounds for upward departures, including a prior murder conviction

that had not been counted toward Gill’s criminal history category

because it was more than fifteen years old; Alsad’s severe physical

injuries; the possibility that Gill’s conduct in shooting Alsad

constituted attempted murder, even though it had not been charged

as such;2 and Gill’s brutality in shooting Alsad with no warning or

opportunity to satisfy a demand for money. On December 16, 2005,

the prosecution moved for upward departures on each of these

grounds, and on December 30, 2005, Gill filed a memorandum opposing

the prosecution’s motion.

On April 3, 2006, the district court conducted Gill’s

sentencing hearing. The court adopted the PSR’s findings of fact

and its determination of Gill’s offense level, criminal history

category, and resulting guidelines range, all without objection

from Gill. The court then advised the parties that it had

considered their various presentence filings and offered an

opportunity to further argue their respective positions. In

response, the prosecution presented the testimony of Alsad’s ex-

2
Attempted murder is a federal offense in only a few limited
circumstances, none of which was presented by Gill’s shooting of
Alsad. Thus, Gill apparently could not have been charged with
attempted murder in federal court as a result of these events.

5
wife, as well as statements from two of his children; Gill made a

statement on his own behalf; and the parties reiterated the views

they had presented in their memoranda on the upward departure

motion, with Gill focusing especially on his age (fifty-one) and

poor health. In addition, Gill offered a letter from a counselor

indicating that he was regularly attending therapy sessions and had

repeatedly expressed his remorse. Gill’s lawyer handed this letter

to the judge, who read it before proceeding further.

After hearing the parties’ respective positions, the

sentencing court announced several upward departures. First,

because of Gill’s prior conviction for murder, the court departed

upward from criminal history category II to category III. Next,

the court concluded that Gill’s conduct in shooting Alsad

constituted attempted murder, and thus, pursuant to guidelines

section 5K2.21, departed upward to an offense level of 31 — the

level that would have applied had Gill been sentenced under the

attempted-murder guideline (guidelines section 2A2.1).3 Finally,

the court departed upward by two additional offense levels,

pursuant to guidelines section 5K2.8, because Gill’s actions —

specifically, shooting Alsad without giving him an opportunity to

3
Pursuant to guidelines section 2A2.1, the base offense level
for attempted murder is 27. If an attempted murder resulted in
permanent, life-threatening injuries, a four-level enhancement is
triggered, resulting in an offense level of 31. See U.S.S.G. §
2A2.1(b)(1).

6
comply with a robbery demand — constituted extreme conduct. These

departures produced an offense level of 33, which the sentencing

court then reduced by 3 levels because of Gill’s acceptance of

responsibility in pleading guilty.

Gill’s resulting offense level of 30 and criminal history

category of III produced a guidelines range of 121 to 151 months on

Count I. The sentencing court’s upward departures did not affect

Gill’s advisory guidelines sentence on Count II, which remained 120

months. The court sentenced Gill to the top of the guidelines

range — 151 months — on Count I and to the guidelines sentence of

120 months on Count II. These sentences were to be served

consecutively, for a total of 271 months’ imprisonment.

In explaining its sentencing rulings, the court reasoned that

“[a] sentence at the upper end of the guideline range will insure

that the defendant does not engage in future criminal conduct.”

J.A. 81-82.4 The court further asserted that it had considered

each intervening offense level and found that an offense level of

30 was appropriate, and that Gill’s sentence “adequately accounts

for the severity of the offense” as well as “the defendant’s past

criminal record.” Id. at 82. Additionally, on April 11, 2006, the

court filed a written Statement of Reasons for Gill’s sentence. In

this Statement of Reasons, the court expressly identified four of

4
Citations to “J.A. ___” refer to the Joint Appendix filed by
the parties in this appeal.

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the sentencing goals spelled out in 18 U.S.C. § 3553(a) as grounds

for the sentence it had imposed: (1) to account for the nature and

circumstances of the offense and the history and characteristics of

the defendant, see 18 U.S.C. § 3553(a)(1); (2) to reflect the

seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense, see id. § 3553(a)(2)(A);

(3) to afford adequate deterrence to criminal conduct, see id. §

3553(a)(2)(B); and (4) to protect the public from further crimes of

the defendant, see id. § 3553(a)(2)(C).

Gill has timely appealed his sentence and we possess

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review a district court’s sentence, including departures,

for reasonableness, considering the extent to which the sentence

comports with the goals of 18 U.S.C. § 3553(a). See United States

v. Booker, 543 U.S. 220, 264 (2005); United States v. Davenport,

445 F.3d 366, 370 (4th Cir. 2006); United States v. Dalton, 477

F.3d 195, 197 (4th Cir. 2007) (“We review the court’s departure for

reasonableness.”). The legal determinations underlying a sentence

are reviewed de novo. See Davenport, 445 F.3d at 370. Findings of

fact made by a district court in sentencing proceedings are

reviewed on appeal for clear error. See id.

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III.

Gill first challenges the sentencing court’s upward departure

to the offense level for attempted murder, pursuant to guidelines

section 5K2.21. Section 5K2.21 addresses conduct that relates to

the offense of conviction and either was not charged (for whatever

reason) or underlay a charge dismissed as the result of a plea

agreement. If such conduct exists and did not enter into the

determination of the defendant’s guidelines range, section 5K2.21

approves a departure to the offense level applicable to the

uncharged conduct. The purpose of this departure provision is to

reflect the true seriousness of a defendant’s offense in situations

where the charges against him fail to do so.

Gill asserts that the district court’s departure under section

5K2.21 was improper, but the reasons for his position are

unpersuasive. For one, he maintains that a departure to the

offense level for attempted murder was erroneous because no

attempted-murder charge was dismissed in his case — rather, the

only charge dismissed was Count III, which alleged he was a felon

in possession of ammunition. Section 5K2.21, however, expressly

covers not only conduct underlying a charge that was dismissed, but

any conduct that could have been charged but was not. The fact

that Gill was never charged with attempted murder thus did not

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prevent the court from sentencing him under the attempted-murder

guideline, pursuant to section 5K2.21.

Gill also contends that the charges to which he pleaded guilty

adequately reflect the seriousness of his offense, and that a

departure for uncharged conduct was thus unwarranted.

Specifically, he asserts that his conduct consisted of robbing a

convenience store (reflected in Count I, interference with commerce

by robbery) and discharging a firearm while doing so (reflected in

Count II, using a firearm in furtherance of a crime of violence).

That forgiving characterization, however, does not begin to express

the seriousness of Gill’s offense, for he did not simply discharge

a firearm while robbing a convenience store. Rather, he discharged

the firearm into the head of the store’s owner at point-blank

range, an act that he could only have expected would lead to the

victim’s death. It was thus reasonable for the sentencing court to

find that Gill’s despicable actions constituted an attempted murder

on which he was not charged, and that his sentence would not

reflect the seriousness of his offense if it failed to account for

that aspect of his conduct.

Gill next contends that the sentencing court acted

unreasonably in applying the guidelines’ departure provision for

extreme conduct. Section 5K2.8, the provision invoked by the

court, sanctions an upward departure for conduct that is “unusually

10
heinous, cruel, brutal, or degrading to the victim.” It goes on to

specify that “[e]xamples of extreme conduct include torture of a

victim, gratuitous infliction of injury, or prolonging of pain or

humiliation.” U.S.S.G. § 5K2.8.

Gill asserts that the district court failed to explain why his

conduct was unusually cruel or heinous, and maintains that his act

was no worse than any other shooting. We disagree. In departing

upward, the court observed that Gill’s conduct was unusually cruel

because he walked into the Community Mart and immediately shot

Alsad directly in the head, without providing him any warning or an

opportunity to comply with a demand for money. It was not

unreasonable for the court to conclude that Gill’s action in this

regard constituted gratuitous infliction of injury, which section

5K2.8 expressly spells out as an example of extreme conduct.

Accordingly, we reject Gill’s contention that the court

unreasonably departed on this ground.

Finally, Gill maintains that his sentence was unreasonable

because the district court failed to adequately demonstrate its

consideration of the § 3553(a) sentencing factors and his

contentions in opposition to the upward departure motion. A

sentence may be procedurally unreasonable if the court “provides an

inadequate statement of reasons or fails to make a necessary

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factual finding.” United States v. Moreland, 437 F.3d 424, 434

(4th Cir. 2006).5 Although a sentencing court “need not

robotically tick through § 3553(a)’s every subsection,” its

explanation “must be elaborate enough to allow an appellate court

to effectively review the reasonableness of the sentence.” United

States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006)

(internal quotation marks omitted). As Gill emphasizes, a

sentencing court should provide some indication that it assessed

the § 3553(a) factors with respect to its sentencing of the

defendant and also weighed the potentially meritorious arguments

raised by the parties concerning sentencing. See id.

The district court amply satisfied these standards in its

explanation of Gill’s sentence. With regard to the § 3553(a)

factors, the court observed during the sentencing hearing that

Gill’s sentence would “insure that the defendant does not engage in

future criminal conduct.” See J.A. 81-82; 18 U.S.C. §

3553(a)(2)(C) (further crimes of the defendant). The court further

asserted that the sentence “adequately accounts for the severity of

the offense.” See J.A. 82; 18 U.S.C. § 3553(a)(1) (nature and

5
Although Gill’s brief asserts that he is challenging the
substantive reasonableness of his sentence, he actually contests
only the district court’s purported failure to adequately discuss
the § 3553(a) factors and his sentencing contentions. Accordingly,
we analyze his position in this regard as a challenge to his
sentence’s procedural, rather than substantive, reasonableness.
See Moreland, 437 F.3d at 434 (explaining distinction between
procedural and substantive reasonableness).

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circumstances of the offense), (a)(2)(A) (seriousness of the

offense). Gill’s sentence, the court determined, also properly

took into account “the defendant’s past criminal record.” J.A. 82,

18 U.S.C. § 3553(a)(1) (history and characteristics of the

defendant). And, the court explained that it had considered each

intervening offense level between Gill’s pre-departure level of 23

and his post-departure level of 30, and found the post-departure

level to be appropriate. See 18 U.S.C. § 3553(a) (“The court shall

impose a sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in . . . this subsection.”).

Additionally, in its written Statement of Reasons, the court

reiterated its consideration of several of these factors and

advised that yet another reason for Gill’s sentence was to afford

adequate deterrence to criminal conduct, pursuant to §

3553(a)(2)(B). In these circumstances, the court can hardly be

said to have disregarded the principles of § 3553(a).

With respect to its handling of Gill’s contentions on his

sentence, the district court informed the parties at the outset of

the sentencing hearing that it had already considered their written

submissions. It then allowed them to recapitulate and argue orally

the views they had previously spelled out in writing. When Gill

offered the court a newly received letter praising his efforts at

rehabilitation, the court accepted the letter and read it before

pronouncing Gill’s sentence. The record thus indicates that the

13
court properly considered Gill’s sentencing positions. His

sentence is not rendered procedurally unreasonable merely because

the court conducted no checklist-style recitation of his

contentions, especially since his principal emphases at the

sentencing hearing — age and ill health — were immaterial to the

departure provisions that the court invoked. In the context of the

undisputed record of Gill’s reprehensible conduct and his

unpersuasive opposition to the motion for upward departure, the

court’s explanation in this regard was more than adequate for us to

evaluate the reasonableness of his sentence. See Montes-Pineda,

445 F.3d at 381 (asserting importance of context in assessing

adequacy of explanation of sentence).

IV.

Pursuant to the foregoing, we affirm the sentence imposed by

the district court.

AFFIRMED