UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4522
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
DERRY DREW PYLES,
Defendant - Appellee.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-5497)
Submitted: February 12, 2008 Decided: April 4, 2008
Before WILLIAMS, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Zelda Elizabeth Wesley, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, Rita R. Valdrini, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellant. James
Bryan Zimarowski, Morgantown, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derry Drew Pyles was sentenced to a term of five years
probation with six months home confinement following his plea of
guilty to one count of aiding and abetting the distribution of
crack cocaine, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.
2007). On appeal, we reversed Pyles’s sentence, explaining that,
although we “appreciate[d] the thoughtfulness” of the district
court’s opinion, given that Pyles’s advisory Guideline range was 63
to 78 months imprisonment, a sentence of probation, did “not
reflect the seriousness of Pyles’s offense or provide a just
punishment.” United States v. Pyles, 482 F.3d 282, 283 (4th Cir.
2007). The United States Supreme Court granted Pyles’s petition
for certiorari, vacated our earlier opinion, and remanded the case
to our court for further consideration in light of Gall v. United
States, 128 S. Ct. 586 (2007). Pyles v. United States, 76 U.S.L.W.
3343 (U.S. Jan 7, 2008). Applying the “deferential abuse-of-
discretion standard” mandated by Gall, 128 S. Ct. at 591, we now
affirm Pyles’s sentence.
I.
The facts are sufficiently set forth in our earlier opinion,
see Pyles, 482 F.3d at 283-86, and we only briefly revisit them
here.
2
During the late spring and early summer of 2004, Pyles came to
the attention of West Virginia State Police investigators who were
looking into crack-cocaine distribution in the area of Morgantown,
West Virginia. As part of this investigation, an undercover
officer purchased $100 quantities of crack cocaine at Pyles’s home
on several occasions in June 2004.
On March 1, 2005, a federal grand jury in the Northern
District of West Virginia indicted Pyles, charging him with
conspiracy to distribute in excess of five grams of cocaine base
(“crack cocaine”), in violation of 21 U.S.C.A. §§ 846 (West 1999 &
Supp. 2006) and 841(b)(1)(B)(iii), and with three counts of
distributing .15, .23, and .33 grams of crack cocaine (reflecting
the controlled buys by the undercover officer), in violation of
§§ 841(a)(1), (b)(1)(C). On May 6, 2005, pursuant to a plea
agreement with the Government, Pyles pleaded guilty to one count of
aiding and abetting the distribution of .23 grams of crack cocaine,
in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(C).
In the presentence report (“PSR”) prepared by the probation
officer for sentencing, Pyles’s total Guideline offense level was
calculated as 25 based upon the amount of crack cocaine
attributable to him and taking into account a three-level reduction
for his acceptance of responsibility. Considering Pyles’s various
adult criminal convictions, the PSR determined that Pyles fell
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within a criminal history category of II.1 With this offense level
and criminal history, the district court correctly calculated
Pyles’s advisory Guidelines range as 63 to 78 months imprisonment.
The district court ultimately sentenced Pyles to five years
probation with six months home confinement. In Pyles, we explained
the district court’s rationale as follows:
On April 24, 2006, the district court entered a
Judgment in a Criminal Case and included a twenty-two
page statement explaining its reasons for imposing a
variance sentence of probation. The well-written
statement analyzed in detail how the facts of Pyles’s
case comported with the sentencing factors of § 3553(a).
Starting with the factor of § 3553(a)(1), “the nature and
circumstances of the offense and the history and
characteristics of the defendant,” the district court
stated that “Pyles’[s] history and characteristics were
determinative. His personal rehabilitative efforts both
pre- and post-conviction have been extraordinary, and
beyond anything seen in other criminal cases this judge
has handled during almost fourteen years of criminal
sentencing under the guidelines.” (J.A. at 137.) The
district court observed that Pyles abruptly stopped using
drugs more than six months before he was indicted and
that Pyles had continued on a path of rehabilitation by
proving himself to be a good employee, repaying past
debts, rectifying a DUI offense, and abstaining from
drugs.
The district court recognized that, while Pyles’s
rehabilitation was extraordinary, his drug distribution
offense was serious. See 18 U.S.C.A. § 3553(a)(1)
(requiring sentencing courts to consider the “nature and
circumstances of the offense”). In fact, the district
court concluded that the one count of aiding and abetting
distribution to which Pyles pleaded guilty did not
1
The PSR included in Pyles’s criminal history determination
his two convictions for driving under the influence (“DUI”) and one
conviction for domestic battery. Pursuant to U.S. Sentencing
Guidelines Manual, § 4A1.2(c) (2004), the PSR excluded from Pyles’s
criminal history determination two convictions for driving while
his license was revoked for DUI.
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actually reflect the extent or seriousness of Pyles’s
offense. As the court explained, “Pyles’ offense was
part of a quintessential crack case involving a
significant amount of a dangerous drug, multiple sales,
and numerous people.” (J.A. at 145.)
With these facts in mind, the district court then
proceeded to consider the need for Pyles’s sentence “(A)
to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical
care, or other correctional treatment in the most
effective manner.” 18 U.S.C.A. § 3553(a)(2). The
district court concluded that “a sentence of probation
will allow Pyles to complete valuable vocational training
and take advantage of available opportunities for
advancement at work in the most effective manner.” (J.A.
at 146 (citing § 3553(a)(2)(D)).) Because Pyles had been
monitored for drug use and tested negative at every
screening during the six months prior to his indictment,
the district court concluded that “incarceration is not
necessary to protect the public from further crimes by
Pyles, (18 U.S.C. § 3553(a)(2)(C)), and a sentence of
probation that includes home confinement will
sufficiently restrict his freedom to deter any risk of
future criminal conduct. (18 U.S.C. § 3553(a)(2)(B)).”
(J.A. at 147.) Although it noted that aiding and
abetting the distribution of crack cocaine was a serious
offense, the district court concluded that a variance
sentence of 5 years’ probation was sufficient, but not
greater than necessary, to punish Pyles for his offense.
Finally, the district court considered whether the
variance sentence would create “unwarranted sentence
disparities among defendants with similar records who
have been found guilty of similar conduct.” 18 U.S.C.A.
§ 3553(a)(6). Although expressly acknowledging that
Pyles’s variance sentence would indeed create a
sentencing disparity relative to other defendants
convicted of distributing crack cocaine, the district
court concluded that the disparity was warranted because
of Pyles’s unique rehabilitation. (J.A. at 149-50
(“[I]ncarceration [of Pyles] would be a gross mistake, a
warehousing effort that would be a poor substitute for
the positive rehabilitative influence Pyles has found in
work, counseling, and education outside the correctional
system.”).)
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Having determined that a variance sentence was
warranted under § 3553(a), the district court analyzed
whether the extent of the variance sentence was justified
by comparing Pyles’s case with our decision in United
States v. Moreland, 437 F.3d 424 (4th Cir. 2006), which
vacated a variance sentence because the extent of the
variance –- a reduction from 360 months to 120 months’
imprisonment –- was unreasonable. Id. at 437. The
district court observed that in Moreland the extent of
the variance was unreasonable because the defendant in
that case was a repeat drug offender and because the
defendant’s “‘desultory pursuit of his education and his
spotty employment history . . . can provide little
confidence in his willingness to become a productive
member of society, irrespective of his ability to do
so.’” (J.A. at 151 (quoting Moreland, 437 F.3d at 437.).)
By contrast, the district court concluded that Pyles was
unlike the defendant in Moreland because Pyles was “not
a repeat drug offender.” (J.A. at 151.) Further, unlike
the defendant in Moreland, Pyles not only “exhibited a
willingness to become a productive member of society . .
. he has achieved that goal.” (J.A. at 152.) For these
reasons, the district court concluded that it was
reasonable to impose a variance sentence of 5 years’
probation with a condition of 6 months’ home confinement.
Pyles, 482 F.3d at 285-86 (alteration in original).
II.
A.
The Gall Court reiterated that appellate review of sentencing
decisions should follow a two-step process. First, a reviewing
court should “ensure that the district court committed no
significant procedural error.” Gall, 128 S. Ct. at 597.
Significant procedural errors can include failure to calculate a
proper Guidelines range, or failure to consider the § 3553(a)
factors. Id. If the district court’s decision is free from
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significant procedural errors, “the appellate court should then
consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard” by looking to the “totality
of the circumstances, including the extent of any variance from the
Guidelines range.” Id. “If the sentence is within the Guidelines
range, the appellate court may, but is not required to, apply a
presumption of reasonableness.” Id.
In reviewing sentences outside the Guidelines range, the
appellate court “may not apply a presumption of unreasonableness.”
Id. In addition, although an appellate court “may consider the
extent of the deviation,” it “must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id.
B.
As we noted in our earlier opinion, “[t]here is no contention
that Pyles’s sentence is procedurally unreasonable.” Pyles, 482
F.3d at 288. Thus, our inquiry is limited to the substantive
reasonableness of Pyles’s sentence of five years probation.
Applying our “deferential abuse-of-discretion standard,” Gall 128
S. Ct. at 591, we conclude that the sentence was reasonable. We
start by reiterating that the district court “included a twenty-two
page statement” of reasons that was “well-written” and “analyzed in
detail how the facts of Pyles’s case comported with the sentencing
factors of § 3553(a).” Pyles, 482 F.3d at 285. The district court
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also “recognized that . . . [Pyles’s] drug distribution offense
was serious.” Id.
In addition, we note that Gall offered guidance on several
fronts that is useful in deciding this case. First, in Gall, the
defendant, whose advisory Guidelines range was 30-37 months
imprisonment, was sentenced to 36 months probation. Gall, 128 S.
Ct. at 593. In approving this sentence, the Gall Court noted that
Ҥ 3553(a)(3) directs the judge to consider sentences other than
imprisonment,” id. at 602, and, while “recogniz[ing] that
custodial sentences are qualitatively more severe than probationary
sentences of equivalent terms,” the Court nevertheless concluded
that “[o]ffenders on probation are nonetheless subject to several
standard conditions that substantially restrict their liberty.”
Id. at 595.
Next, the Gall Court rejected (1) “an appellate rule that
requires ‘extraordinary’ circumstances to justify a sentence
outside the Guidelines range;” and (2) “the use of a rigid
mathematical formula that uses the percentage of a departure as the
standard for determining the strength of the justifications
required for a specific sentence.” Id. at 595.
Finally, in Kimbrough v. United States, 128 S. Ct. 558 (2007),
the Court held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular defendant
that the crack/powder disparity yields a sentence ‘greater than
8
necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case.” Id. at 575.2
Giving due deference to the district court’s sentencing
decision, we cannot say that the district court’s treatment of
Pyles’s case yielded an unreasonable sentence. The Gall Court has
reminded us that probation, although less severe than
incarceration, is not a “get-out-of-jail free card” either. Pyles,
482 F.3d at 292 (internal quotation marks omitted). Moreover, a
proportional analysis of the type we applied in our earlier
opinion, requiring more compelling reasons the greater the
variance, is no longer appropriate. See Gall, 128 S. Ct. at 595.
Finally, the simple fact that Pyles pleaded guilty to a crack
cocaine offense does not, alone, mandate a more serious sentence.
Kimbrough, 128 S. Ct. at 575.
In this case, the district court correctly calculated the
advisory Guidelines range, considered the factors listed in §
3553(a), and entered its sentence in the course of a twenty-two
page written opinion. In so doing, it did not abuse its discretion
in sentencing Pyles to five years probation with six months home
confinement.
2
Indeed, in United States v. Pyles, 482 F.3d 282 (4th Cir.
2007), we relied upon United States v. Eura, 440 F.3d 625 (4th Cir.
2006) for the proposition that “‘Congress has made a decision to
treat crack cocaine dealers more severely’ than dealers of other
drugs, such as powder cocaine.” Pyles, 482 F.3d at 291 (quoting
Eura, 440 F.3d at 633). Eura, however, was abrogated by Kimbrough
v. United States, 128 S. Ct. 558, 566 n.4 (2007).
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III.
Accordingly, for the foregoing reasons, the judgment of the
district court is
AFFIRMED.
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