UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4122
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY SINGLETON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00164-F-1)
Submitted: July 24, 2008 Decided: September 18, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi
Rangarajan, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Leroy Singleton pled guilty
to mail fraud, in violation of 18 U.S.C.A. § 1341 (West 2000 &
Supp. 2008). At sentencing, the district court departed upward
from the advisory Guidelines pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 4A1.3 (2007), because Singleton’s criminal
history category under-represented the seriousness of his past
criminal conduct and the likelihood that he would recidivate.
Singleton was sentenced to a term of seventy months’ imprisonment.
Because the district court speculated that Singleton had likely
been involved in additional criminal activity, we are compelled to
find the district court’s upward departure was unreasonable and
therefore vacate Singleton’s sentence and remand for resentencing.
Following United States v. Booker, 543 U.S. 220 (2005),
appellate review of a district court’s imposition of a sentence is
for abuse of discretion. Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). The appellate court must first ensure that the district
court committed no procedural error, such as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence--including an explanation
for any deviation from the Guidelines range.” Gall, 128 S. Ct. at
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597. In the event the sentencing court decides to impose a
sentence outside the recommended Guidelines range, the sentencing
court “must consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree
of the [departure].” Id.
If there are no procedural errors, we then consider the
substantive reasonableness of the sentence. Id. “Substantive
reasonableness review entails taking into account the ‘totality of
the circumstances, including the extent of any variance from the
Guidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall, 128 S.
Ct. at 597). While we may presume a sentence within the Guidelines
range to be reasonable, we may not presume a sentence outside the
range to be unreasonable. Id. Moreover, we must give due
deference to the district court’s decision that the § 3553(a)
factors justify imposing a variant sentence and to its
determination regarding the extent of any variance. Id.
A district court may depart upward based on the
inadequacy of the defendant’s criminal history if “reliable
information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant
will commit other crimes.” USSG § 4A1.3(a)(1), p.s. To make that
determination, a court may consider prior sentences not used in the
criminal history calculation, prior sentences of “substantially
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more than one year” comprised of independent crimes committed at
different times, prior similar misconduct resolved by civil or
administrative adjudication, charges pending at the time of
offense, or prior similar conduct that did not result in a
conviction. See USSG § 4A1.3(a)(3)(A-E).
The district court used Singleton’s history of fraudulent
behavior to conclude he had likely engaged in additional criminal
conduct not reflected in the criminal history category. We
conclude that this finding was unduly speculative and that the
court’s reliance on it rendered Singleton’s sentence unreasonable.
Because we cannot determine from the record that the finding “did
not affect the district court’s selection of the sentence imposed,”
Williams v. United States, 503 U.S. 193, 203 (1992), we therefore
vacate the sentence imposed by the district court and remand for
resentencing. 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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