UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4497
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIUS TERRY MEARES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (7:06-cr-00108-BO)
Submitted: July 17, 2008 Decided: August 14, 2008
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrius Terry Meares pled guilty pursuant to a written
plea agreement to armed bank robbery (“Count One”) and brandishing
a firearm during and in relation to a crime of violence (“Count
Two”), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii); 2113(a), (d)
(2000). Meares was sentenced to a total of 300 months’
imprisonment. He challenges this sentence on appeal.
As to the armed bank robbery offense charged in Count
One, the Presentence Investigation Report recommended an adjusted
offense level of twenty and a criminal history category of V,
thereby resulting in an advisory guideline range of 63 to 78
months’ imprisonment. See U.S. Sentencing Guidelines Manual Ch. 5,
Pt. A (2006) (sentencing table). As to the firearms offense
charged in Count Two, Meares’s advisory guideline sentence was the
minimum term of imprisonment required by statute, or eighty-four
months. See USSG § 2K2.4(b) (2006); see also 18 U.S.C.
§ 924(c)(1)(A)(ii).
Meares agreed with the contents of the presentence
report, including the details surrounding a second armed bank
robbery that was charged in Count Three, but dismissed pursuant to
the terms of the plea agreement. The district court, however,
determined that an additional two-level increase was warranted
under USSG § 3A1.1 (2006) (vulnerable victim enhancement) because
Meares took a woman in her fifties hostage during the second armed
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bank robbery. Meares’s counsel argued against the enhancement,
stating the purpose of § 3A1.1 was to punish offenders who
intentionally chose victims based on an immutable characteristic,
such as race. The court disagreed with counsel’s argument, and
applied the enhancement. Consequently, the advisory guideline
range for Count One, based on an adjusted offense level of twenty-
two and a criminal history category of V, was 77 to 96 months.
Because the facts surrounding the robberies were
egregious, the court determined that a sentence above the advisory
guideline range was warranted. Pursuant to USSG § 5K2.21 (2006),
the court calculated an upward departure range based on the facts
surrounding the dismissed count, including the fact that the second
armed bank robbery involved a “vulnerable victim.” Since the court
concluded that the departure guideline range was still “inadequate
to accurately reflect the planning and consummation of these
crimes,” it imposed a variance sentence totaling 300 months’
imprisonment, which included 180 months on Count One and a
consecutive term of 120 months on Count Two.
Meares challenges the district court’s application of the
Sentencing Guidelines on appeal. He specifically argues that the
court impermissibly double counted the conduct in the dismissed
count by using it as the basis for application of a vulnerable
victim enhancement during its determination of the advisory
guideline range as well as for an upward departure under § 5K2.21.
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The Government concedes that the district court impermissibly
double counted. Additionally, the Government notes that the
court’s application of the vulnerable victim enhancement in
calculating the advisory guideline range was likewise erroneous as
it was based on conduct unrelated to the crimes for which Meares
pled guilty.
When determining a sentence, the district court must
calculate the appropriate advisory guideline range and consider it
in conjunction with the factors set forth in 18 U.S.C. § 3553(a)
(2000). Gall v. United States, 128 S. Ct. 586, 596 (2007). In
reviewing the district court’s application of the Sentencing
Guidelines, we review findings of fact for clear error and
questions of law de novo. United States v. Green, 436 F.3d 449,
456 (4th Cir. 2006). Appellate review of a district court’s
imposition of a sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” is for abuse of
discretion. Gall, 128 S. Ct. at 591.
“Double counting occurs when a provision of the
Guidelines is applied to increase punishment on the basis of a
consideration that had been accounted for by application of another
Guideline provision or by application of a statute.” United
States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004). Unless
expressly prohibited by the Guidelines, double counting is
permitted. Id. Such is the case in § 5K2.21, which recognizes
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that a court may “depart upward to reflect the actual seriousness
of the offense based on conduct . . . underlying a charge dismissed
as part of a plea agreement,” but requires that the conduct at
issue may not have “enter[ed] into the determination of the
applicable guideline range.” USSG § 5K2.21.
The district court indisputably used the dismissed
conduct in Count Three to both calculate the advisory guideline
range and depart upward under § 5K2.21. As this form of double
counting is expressly prohibited by § 5K2.21, the court’s
application of the Guidelines was erroneous. Moreover, as
commendably noted by the Government, the court’s application of the
vulnerable victim enhancement in initially determining Meares’s
advisory guideline range was likewise erroneous as the conduct
underlying the enhancement was unrelated to the charges for which
Meares pled guilty. Consequently, Meares’s sentence, which is the
result of significant procedural error, is unreasonable. See
United States v. Evans, 526 F.3d 155, 160-62, 164 (4th Cir. 2008).
We therefore vacate Meares’s sentence and remand for resentencing.
On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for the determination. Id. at 160-61.
The court should consider this sentencing range along with the
other factors described in 18 U.S.C. § 3553(a) and then impose a
sentence. Id. at 161. If that sentence falls outside the
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Guidelines range, the court should articulate its reasons for the
departure or variance with respect to each count. Id. We, of
course, indicate no view as to the appropriate sentence to be
imposed upon Meares, leaving that determination, in the first
instance, to the district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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