UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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.
I.
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
register, and then walked out of the building.
The bullet from Gill’s .25 caliber handgun entered the right
frontal region of Alsad’s brain and lodged in his posterior fossa,
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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.
A.
1.
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.
2.
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
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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.
B.
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
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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
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