UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4267
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARVEY DELTON MINTZ, a/k/a Tinker,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (7:05-cr-00130)
Submitted: February 12, 2008 Decided: March 6, 2008
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and William L.
OSTEEN, Jr., United States District Judge for the Middle District
of North Carolina, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Banumathi Rangarajan, 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Unpublished opinions are not binding precedent in this circuit.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:
Harvey Delton Mintz pled guilty to conspiring to possess with
intent to distribute and to distribute cocaine and cocaine base,
and he was sentenced to 180 months of imprisonment. Mintz now
appeals his sentence. For the following reason, we vacate the
sentence and remand this case for further proceedings.
Based on a calculated total offense level of 25 and criminal
history category of III, Mintz’s advisory guideline imprisonment
range was 70-87 months. The district court adopted this
calculation without objection. From this range, the government
moved for an upward departure pursuant to U.S.S.G. § 4A1.3 and
argued that Mintz should be sentenced as a de facto career
offender. Mintz opposed this motion. As noted, the district court
ultimately sentenced Mintz to a term of 180 months. On appeal the
parties contend that the district court fashioned the 180-month
sentence by (1) granting the government’s motion and departing
upward to a range of 188-235 months and (2) then varying downward
from that range to 180 months.
Viewing the case in this light, the parties have framed and
argued the primary appellate issue as being the propriety of the
purported upward departure. However, notwithstanding the parties’
arguments, we believe that the record actually appears to establish
that the district court did not depart upward but, instead, varied
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upward.1 For example, after hearing from the parties during the
sentencing hearing, the district court stated:
It’s my conclusion that the Government’s motion for an
upward departure to a career offender status is – that if
a departure were going to be the basis of sentencing,
then the career offender status guideline of 188 to 235
months would be a valid departure. But I think a
variance would be better advised in terms of the overall
circumstances of this case, and so I am going to sentence
the defendant to 180 months which is slightly below the
departure level, but consistent with what I believe to be
the sentencing purposes and all of the facts in this
case.
J.A. 59. From this statement, the district court apparently
rejected the government’s upward departure motion, finding an
upward variance to be more appropriate. Reading this language in
this manner is consistent with several provisions of the district
court’s “Statement of Reasons” section of the Judgment. In that
section, the district court listed the advisory guidelines range
(before departure) as 70-87 months and checked the box indicating
that it “imposed a sentence outside the advisory sentencing
guideline system.” J.A. 116-17. However, the district court did
not check the box that denoted a departure from the advisory range,
1
A departure and a variance are different sentencing options,
United States v. Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006) (noting distinction between a
departure and variance), and “[t]he permissible factors justifying
traditional departures differ from – and are more limited than –
the factors a court may look to in order to justify a . . .
variance.” United States v. Hampton, 441 F.3d 284, 288 n.2 (4th
Cir. 2006).
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and it likewise did not complete the accompanying section that
requires an explanation for a departure. J.A. 117.
Unfortunately, at the conclusion of the Statement of Reasons
section, the district court was somewhat contradictory, explaining
“the facts justifying a sentence outside the advisory guideline
system” as follows:
The Court concluded that the Government’s sealed motion
for upward departure is valid and the defendant is
sentenced as a career offender which changed the dft’s
TOL to 31; CHC of VI and Guideline range of 188 to 235
mos. However, a variance to a sentence of 180 mos. is an
(sic) approp. based on the facts of the case.
J.A. 118. This language indicates that the district court may have
granted the government’s motion, departed upward, and then varied
downward. The parties rely on this language in making their
appellate arguments.
Based on this record, we believe the best course of action is
to vacate the sentence and remand this case to the district court
in order to allow it to clarify the specific reason and
justification for the sentence imposed, and to enter a new Judgment
reflecting the clarification.2
VACATED AND REMANDED
2
We note that the Sentencing Commission has recently amended
the sentencing guidelines to modify the penalties for crack cocaine
offenses. Nothing in this opinion shall preclude the district
court from applying the amendment, if applicable, to Mintz’s
sentence.
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