United States v. Hawes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4181

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WALTER ROBERT HAWES,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:05-cr-00267-PMD)

Argued: October 31, 2008 Decided: January 30, 2009

Before WILKINSON and GREGORY, Circuit Judges, and Martin K.
REIDINGER, United States District Judge for the Western District
of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Reidinger wrote the
opinion, in which Judge Wilkinson and Judge Gregory joined.

ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, South Carolina, for Appellant. Michael
Rhett DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd,
United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
REIDINGER, District Judge:

After pleading guilty to the charge of identity fraud in

violation of 18 U.S.C.A. § 1028(a)(7) and (b)(1)(D) (West 2000 &

Supp. 2008), the Defendant Walter Robert Hawes was sentenced to

120 months’ imprisonment. Hawes appeals, arguing that his

sentence is substantively unreasonable. Finding no abuse of

discretion by the district court, we affirm.

I.

In 1995, Hawes was one of four roommates sharing a house in

Charleston, South Carolina. After he abruptly moved out, it was

discovered that Hawes had stolen the Social Security card, birth

certificate, and personal checks of one of his roommates, Robert

Burke, and had cashed those checks, receiving approximately

$2,000.00. It was also discovered that Hawes had stolen

personal checks from another roommate, Gary Elliot, and had

cashed those checks, receiving approximately $1,800.00.

After stealing the personal checks of his roommates, Hawes

fled to North Carolina, where he obtained a driver’s license in

Burke’s name using the stolen birth certificate and Social

Security card. While in North Carolina, Hawes incurred unpaid

medical bills, credit card debt, telephone bills, and cable

bills in Burke’s name. Using Burke’s identity, Hawes married a

woman in North Carolina, fathered a child, and incurred child

2
support obligations. Hawes subsequently abandoned this family

and moved back to South Carolina, where he fathered another

child, still using Burke’s identity. When Hawes defaulted on

his child support obligations in North Carolina, there was an

attempt to garnish Burke’s wages for the child support

obligations incurred by Hawes using Burke’s identity.

Hawes used Burke’s identity for more than a decade, and in

the process, destroyed Burke’s credit record. At the sentencing

hearing, Burke testified that he could never clean up his credit

report because once he corrected it, “new things would pop up

all the time. So it was a never-ending nightmare.” J.A. 45.

Burke and his wife suffered substantial inconvenience and

stress related to repairing his damaged credit record. Burke

testified that collection agencies have been calling him for

over a decade for unpaid bills that Hawes incurred in his name.

Burke testified that for several years, these calls occurred on

a daily basis. Burke stated that collection agencies “aren’t

kind people” and that they did not believe him when he told them

that he was a victim of identity theft. J.A. 45-46. As a

result, he testified, “it was impossible to stop that nightmare

from happening. It was an incessant, over and over, daily

matter that happened for a decade.” J.A. 46.

Burke testified that due to his ruined credit history, he

had to pay 22 percent interest for an automobile loan, far

3
higher than he should have paid given his actual credit history.

He further testified that he had to pay higher interest for

credit cards and that he could not be the primary borrower on

his home mortgage. Burke’s credit history was so damaged that

he was forced to obtain a new Social Security number from the

Social Security Administration.

Using Burke’s identity, Hawes was convicted of at least

three felonies and was incarcerated in state prison. Burke

testified that he was once denied a job because of the criminal

record that Hawes had compiled in his name. Burke further

testified that he lost a job opportunity at another company

which paid $20,000 more per year than his position at the time

because the company’s background check revealed the crimes that

Hawes had committed using Burke’s identity. Burke testified

that this criminal record had “a chilling effect on my career

over the past ten years because I’m afraid to leave jobs.” J.A.

50. Burke testified that he was forced to travel to Raleigh to

get fingerprinted, and state authorities had to compare his

fingerprints to the fingerprints on every arrest record that

Hawes had compiled in his name. Despite Burke’s efforts, his

current job at Bank of America was delayed for more than one

month because of this erroneous criminal record.

In November 2004, the Secret Service located Hawes in

Ladson, South Carolina. Hawes initially identified himself to

4
the Secret Service as Robert Burke, and he provided Burke’s

Social Security card and birth certificate as proof of his

identity. Ultimately, Hawes confessed to stealing Burke’s

identity. He explained that he had assumed Burke’s identity

because he previously had testified for the state in an

attempted murder trial and he was scared. At the conclusion of

the interview, the agents advised Hawes that he would be

indicted and that he would receive a summons to appear for

arraignment.

Following his indictment in March 2005, Hawes absconded.

While a fugitive, Hawes continued to use Burke’s identity,

incurring over $4,000 in unpaid medical bills in Burke’s name.

Hawes committed additional identity theft by stealing the Social

Security card and birth certificate of his employer’s son, Eric

Beltz. Using this stolen information, Hawes obtained a Georgia

driver’s license and incurred more than $5,000 in credit card

debt in Beltz’s name.

In July 2006, Hawes was arrested by state authorities for

the theft of Beltz’s identity. At the time of his arrest, Hawes

was living in Summerville, South Carolina, with his common law

spouse, Angel Sollars. A search of the residence revealed

numerous items procured through fraud, including air

conditioners, clothing, jewelry, tools, and electronic

appliances. In an interview with the Secret Service following

5
his arrest, Hawes stated that he knew he was wanted by law

enforcement, but he fled because he was afraid of going to jail.

During this interview, agents described the harm that his

identity theft had caused Burke. Hawes responded that Burke

“didn’t have a very good life to begin with.” J.A. 62.

II.

On September 13, 2006, Hawes entered his plea of guilty to

the indictment. A Presentence Report (PSR) was prepared, and

based upon a criminal history category of V and an offense level

of 12, the appropriate advisory Guidelines range was calculated

to be 27 to 33 months’ imprisonment. In the PSR, the probation

officer recommended an upward departure from the Guidelines or

an upward variance under 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2008). Hawes did not file objections to any portion of

the PSR.

Arguing that Hawes’ acts of identity theft caused

substantial harm and inconvenience to his victim, the government

moved for an upward departure based upon Application Note 19 of

U.S.S.G. § 2B1.1 (2005). The government also moved for an

upward variance, arguing that the factors set forth in 18 U.S.C.

§ 3553(a) merited a sentence greater than the Guidelines range.

At the sentencing hearing, the district court heard

testimony from two of Hawes’ victims, Robert Burke and Eric

6
Beltz, as well as Secret Service Agent Phil Carter. During his

testimony, Burke provided the district court with a detailed

list of all unpaid credit accounts obtained by Hawes that have

appeared on Burke’s credit reports, as well as a calculation of

the additional interest Burke has had to pay as a result of his

poor credit rating resulting from the identity theft. Burke

estimated that these unpaid bills and additional interest

payments amounted to $18,541.00, although he noted that this

figure did not include the cost he had incurred in investigating

the identity theft. Burke estimated that he has spent

“thousands of hours” trying to repair his credit record. J.A.

46.

Beltz testified that his parents had employed Hawes to

perform work on several rental houses. He testified that Hawes

had gained his parents’ trust over the years, and that they had

provided Hawes and his girlfriend financial assistance and had

showered them with gifts. Beltz testified that Hawes stole his

identity for approximately two months and incurred approximately

$8,000 in credit card debt. Beltz testified that because his

Social Security card is still missing, he has to “keep constant

check on my credit report. And it’s just been a pain. A big

pain.” J.A. 68.

At the sentencing hearing, the district court notified

Hawes that it was “strongly considering” an upward departure

7
and/or variance, and the court continued the hearing to allow

the parties time to brief the issue. J.A. 38. Following the

submission of briefs by both parties, the district court held a

second sentencing hearing. After hearing arguments from

counsel, the district court announced that it found the

government’s motion for an upward departure to be “clearly

warranted” pursuant to Application Note 19 of U.S.S.G. § 2B1.1.

J.A. 94. Specifically, the district court found that Hawes had

caused substantial harm and inconvenience to Burke:

To say that the victim in this case suffered
substantial inconvenience is so understated, it would
almost be laughable. Inconvenience doesn’t begin to
describe what . . . the victim suffered at the hands
of this defendant. Not only was his reputation and
credit not repaired, they were destroyed, so much so
that the victim, Mr. Burke, after years and hours of
harassing telephone calls, trips to Raleigh, North
Carolina, identifying fingerprints to separate himself
from the crimes committed by the defendant, ultimately
[had] to get up and get a new social security number
because he could never, ever repair his credit record.

J.A. 95. The district court further found that Hawes had

committed crimes in Burke’s name, “to such a degree that the

people in the prison system, the lawful authorities dealing with

him, didn’t even known that he was doing so in the victim’s name

and identity.” J.A. 96. Finally, the district court found that

not only had Hawes assumed Burke’s identity, he had, through his

acts of theft, managed to “live[] the victim’s life more fully

than the victim did,” and the court noted that it did not know

8
“of a single case that could be more egregious in that regard

. . . .” Id.

Having concluded that an upward departure was warranted,

the district court found that there was still “a need for an

upward variance in this case, simply because the facts are so

unusual and so aggravating.” J.A. 94. Upon reviewing the

factors set forth in 18 U.S.C. § 3553(a), the district court

found the need for deterrence, the need for punishment, and the

need to protect the public from future crimes to be significant

factors in favor of an upward variance. Of particular import to

the district court was the fact that Hawes continued to use

Burke’s identity and stole the identity of another victim

following his indictment. In the district court’s view, these

actions demonstrated a lack of remorse or contrition. In the

end, the district court concluded, “I don’t think there are

enough resources in the federal arsenal to accomplish

[rehabilitation] with this defendant. But what I do know is the

longer he’s incarcerated, the fewer opportunities he’ll have to

do this to anyone else.” J.A. 99. Accordingly, the district

court sentenced Hawes to a term of imprisonment of 120 months.

This appeal followed.

9
 III.

A.

In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,

160 L. Ed. 2d 621 (2005), the Supreme Court invalidated both 18

U.S.C. § 3553(b)(1), which made the Sentencing Guidelines

mandatory, and 18 U.S.C. § 3742(e), which required appellate

courts to conduct a de novo review of departures from the

Guidelines. 543 U.S. at 260-62, 125 S. Ct. 738. As a result of

the Booker decision, the Guidelines are now advisory, and

appellate courts are limited to reviewing sentencing decisions

to determine whether such sentences are “reasonable.” Gall v.

United States, 128 S. Ct. 586, 594, 169 L. Ed. 2d 445 (2007).

As the Supreme Court has made clear, the “appellate

‘reasonableness’ review” required by Booker “merely asks whether

the trial court abused its discretion.” Rita v. United States,

127 S. Ct. 2456, 2465, 168 L. Ed. 2d 203 (2007).

Although the Guidelines are no longer mandatory, they

remain “the starting point and the initial benchmark” for any

sentencing decision. Gall, 128 S. Ct. at 596. Thus, in making

a sentencing determination, the district court should begin by

calculating the applicable Guidelines range. Id. As the

Supreme Court has recognized, the advisory Guidelines range

“reflect[s] a rough approximation of sentences that might

achieve § 3553(a)’s objectives.” Kimbrough v. United States,

10
128 S. Ct. 558, 574, 169 L. Ed. 2d 481 (2007). Consequently,

using the advisory Guidelines range as a “starting point

furthers Congress’ desire for efficient administration and

nationwide consistency in sentencing.” United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007).

Once the appropriate Guidelines range has been calculated,

the district court should give the parties “an opportunity to

argue for whatever sentence they deem appropriate.” Gall, 128

S. Ct. at 596. The district court then should consider the

factors set forth in § 3553(a) to determine whether such factors

support the sentence requested by either party. Id. Those

factors are as follows: (1) “the nature and circumstances of the

offense and the history and characteristics of the defendant”;

(2) “the need for the sentence imposed (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”; (3) “the kinds of sentences available”; (4)

the kinds of sentence and the sentencing range established for

“the applicable category of offense committed by the applicable

category of defendant as set forth in the guidelines” in effect

11
at the time of sentencing; (5) “any pertinent policy statement

issued by the Sentencing Commission” which is in effect at the

time of sentencing; (6) “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct”; and (7) “the need to provide

restitution to any victims of the offense.” 18 U.S.C.A.

§ 3553(a). The statute further requires the sentencing court to

“impose a sentence sufficient, but not greater than necessary,

to comply with the purposes set forth in paragraph (2) of this

subsection.” Id.

In determining the appropriate sentence, the district court

“may not presume that the Guidelines range is reasonable.”

Gall, 128 S. Ct. at 596-97; Rita, 127 S. Ct. at 2465 (“In

determining the merits of these arguments, the sentencing court

does not enjoy the benefit of a legal presumption that the

Guidelines sentence should apply.”). Rather, the court must

make an individualized assessment, based upon the facts

presented, and determine whether a sentence outside of the

Guidelines is warranted. Gall, 128 S. Ct. at 597. If the

district court decides to impose a non-Guidelines sentence, the

court then “must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the

degree of the variance.” Id. In Gall, the Supreme Court found

12
“it uncontroversial that a major departure should be supported

by a more significant justification than a minor one.” Id.

As the last step of the sentencing process, the district

court must provide an adequate explanation of its sentencing

decision “to allow for meaningful appellate review and to

promote the perception of fair sentencing.” Id. The district

court “must give serious consideration to the extent of any

departure from the Guidelines and must explain his conclusion

that an unusually lenient or an unusually harsh sentence is

appropriate in a particular case with sufficient

justifications.” Id. at 594. In explaining its sentencing

decision, a district court is not required to “discuss each

factor set forth in § 3553(a) in checklist fashion”; rather, “it

is enough to calculate the range accurately and explain why (if

the sentence lies outside it) this defendant deserves more or

less.” United States v. Moreland, 437 F.3d 424, 432-33 (4th

Cir. 2006)(quoting United States v. Dean, 414 F.3d 725, 729 (7th

Cir. 2005)) (internal quotation marks omitted).

On appeal, this Court reviews the reasonableness of the

sentence imposed, whether the sentence is inside or outside the

Guidelines range, “under a deferential abuse-of-discretion

standard.” United States v. Abu Ali, 528 F.3d 210, 260 (4th

Cir. 2008) (quoting Gall, 128 S. Ct. at 591), pet. for cert.

filed, 77 U.S.L.W. 3242 (Oct. 6, 2008). This review involves

13
two steps. First, we must examine the sentence for

“significant” procedural errors, 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 sentencing based on clearly erroneous

facts, or failing to adequately explain the chosen sentence –

including an explanation of the Guidelines range.” Gall, 128 S.

Ct. at 597.

If the district court’s decision is procedurally sound, we

then consider whether the sentencing decision is substantively

reasonable. In conducting this review, we must “take into

account the totality of the circumstances, including the extent

of any variance from the Guidelines range.” Id. “Under this

approach, the applicable guidelines range plays an important

role.” Abu Ali, 528 F.3d at 261. If the sentence is within the

Guidelines range, we may presume that the sentence is

reasonable, although such a presumption is not required. Gall,

128 S. Ct. at 597. If the sentence is outside of the Guidelines

range, however, we “may not apply a presumption of

unreasonableness.” Id. “To hold otherwise would fatally

undermine the Court’s holding in Booker.” Pauley, 511 F.3d at

473. In reviewing a non-Guidelines sentence, the appellate

court “may consider the extent of the deviation, but must give

due deference to the district court’s decision that the

14
§ 3553(a) factors, on a whole, justify the extent of the

variance.” Gall, 128 S. Ct. at 597. “Even if we would have

reached a different sentencing result on our own, this fact

alone is ‘insufficient to justify reversal of the district

court.’” Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at

597).

As always, when considering the reasonableness of a

sentence, we review the district court’s legal conclusions de

novo and its factual findings for clear error. Abu Ali, 528

F.3d at 261.

B.

The first step in our review of Hawes’ sentence is a

determination of whether there were any significant procedural

errors.

Hawes concedes that the district court committed no

procedural errors in determining his sentence. 1 The parties are

in agreement that the district court properly calculated the

1
We note that the district court did not offer Hawes an
opportunity to allocute until after the court began to impose
sentence. Failure to afford a defendant the opportunity to
allocate is reversible error where it can be shown that an
exercise of the right of allocution could have resulted in a
lesser sentence. See United States v. Muhammad, 478 F.3d 247,
249-50 (4th Cir. 2007). Hawes does not challenge this aspect of
his sentencing, however, and therefore, we consider this issue
to have been waived on appeal.

15
Guidelines range to be 27 to 33 months’ imprisonment. Upon

calculating the applicable Guidelines range, the district court

advised Hawes that it was considering an upward variance and/or

departure and afforded the parties ample opportunity to argue

their respective positions on the issue. The district court

then considered the relevant Guideline departure provisions and

the § 3553(a) sentencing factors and determined that the unique

facts and circumstances of the case were sufficiently compelling

to justify a sentence outside of the Guidelines. 2 Further, the

district court provided an adequate explanation of its

sentencing decision through its oral remarks during the

sentencing hearing. Accordingly, we conclude that the sentence

imposed on Hawes was procedurally sound.

C.

Having found no significant procedural errors, we now must

determine whether the sentence is substantively reasonable.

2
While this Court previously has required a sentencing
court to calculate a Guidelines departure sentence before
considering the imposition of a variance sentence, see Moreland,
437 F.3d at 432, this two-step process no longer appears
necessary under Gall, which merely requires the sentencing court
to “consider the extent of the deviation and ensure that the
justification is sufficiently compelling” to support a non-
Guidelines sentence. 128 S. Ct. at 597.

16
 Since Booker, the Supreme Court has stressed that the

district court’s sentencing decisions are entitled to due

deference and should be overturned only where the district court

has abused its discretion. See Rita, 127 S. Ct. at 2465; Gall,

128 S. Ct. at 597. In Gall, the Supreme Court rejected the

proposition that the district court must apply a heightened

standard of review to sentences outside the Guidelines range.

Gall, 128 S. Ct. at 595. In so doing, the Court explicitly

rejected any rule that would require “extraordinary”

circumstances to justify a sentence outside the Guidelines range

or which would use a “rigid mathematical formula” as a “standard

for determining the strength of the justifications required for

a specific sentence.” Id. The Court stressed that “the abuse-

of-discretion standard of review applies to appellate review of

all sentencing decisions – whether inside or outside the

Guidelines range.” Gall, 128 S. Ct. at 596 (emphasis added).

This deferential standard of review requires appellate

courts to recognize that, for any given case, there is a range

of permissible sentences which may be deemed substantively

reasonable. “[T]here is not a single reasonable sentence but,

rather, a range of reasonable sentences. Consequently, reversal

will result if – and only if – the sentencing court’s ultimate

determination falls outside the expansive boundaries of that

universe.” United States v. Martin, 520 F.3d 87, 92 (1st Cir.

17
2008) (citation omitted). “A sentencing court abuses or exceeds

its discretion when its decision . . . cannot be located within

the range of permissible decisions.” United States v. Cutler,

520 F.3d 136, 157 (2d Cir. 2008)) (quoting United States v.

Canova, 485 F.3d 674, 679-80 (2d Cir. 2007)) (internal quotation

marks omitted). Because there is a range of permissible

outcomes for any given case, an appellate court must resist the

temptation to “pick and choose” among possible sentences and

rather must “defer to the district court’s judgment so long as

it falls within the realm of these rationally available

choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th

Cir. 2007), cert. denied, 128 S. Ct. 1917, 170 L. Ed. 2d 778

(2008); see also United States v. Carter, 538 F.3d 784, 790 (7th

Cir. 2008) (noting substantive reasonableness “contemplates a

range, not a point”).

Appellate courts also “must give due deference to the

district court’s decision that the § 3553(a) factors, on a

whole, justify the extent of the variance.” Gall, 128 S. Ct. at

597. Such deference is justified because a district judge “is

in a superior position to find facts and judge their import

under § 3553(a) in the individual case. The judge sees and

hears the evidence, makes credibility determinations, has full

knowledge of the facts and gains insights not conveyed by the

record.” Id. “It is not for the Court of Appeals to decide de

18
novo whether the justification for a variance is sufficient or

the sentence reasonable.” Id. at 602.

Of course, the high degree of deference afforded a district

court’s sentencing decision does not render appellate review

meaningless. “Gall did not substitute a regime of total

unreviewability for the fallen regime of Guidelines rigidity.”

Abu Ali, 528 F.3d at 266. As this Court stated in Moreland,

“‘reasonableness’ is not a code-word for ‘rubber stamp.’” 437

F.3d at 433. “The ‘totality of the circumstances’ substantive

reasonableness calculus demands that we proceed beyond a

formalistic review of whether the district court recited and

reviewed the § 3553(a) factors and ensure that the sentence

caters to the individual circumstances of a defendant, yet

retains a semblance of consistency with similarly situated

defendants.” Evans, 526 F.3d at 167 (Gregory, J., concurring).

Such review is to ensure that the district court has not merely

provided “lip service” to the § 3553(a) factors, but rather has

given reasonable weight to such factors as the individual

circumstances of the case require, so as to achieve the purposes

of sentencing as set forth in § 3553(a), and has not given

weight to improper factors. With these principles in mind, we

now turn to the sentence imposed upon Hawes in the present case.

19
 D.

1.

In his appellate brief, Hawes first contends that the

district court erred in failing to justify adequately the extent

of its departure from the top of the applicable Guidelines

range. Specifically, Hawes relies upon United States v. Dalton,

477 F.3d 195 (4th Cir. 2007), in support of his argument that

the district court failed to adopt an incremental approach

through the criminal history categories or offense levels to

reach the appropriate sentence.

In Dalton, this Court remanded for re-sentencing on the

grounds that the district court in upwardly departing from the

Guidelines range did not “employ the incremental approach

dictated by [U.S.S.G.] § 4A1.3(a)(4)(B).” Id. at 199. This

Guidelines provision governs upward departures from Criminal

History Category VI and requires district courts to “structure

the departure by moving incrementally down the sentencing table

to the next higher offense level in Criminal History Category VI

until it finds the guidelines range appropriate to the case.”

Id. Dalton is not binding in the present case, however, as the

district court which sentenced Hawes did not base its decision

for upward departure upon § 4A1.3(a)(4)(B), nor was Hawes within

Criminal History Category VI. As such, Hawes’ reliance on

Dalton is simply misplaced.

20
 2.

Hawes further argues in his brief to this Court that the

district court’s sentence is “unreasonable on its face” because

the variance imposed was 264% above the applicable Guidelines

range. The Supreme Court in Gall, however, explicitly rejected

the use of such a “rigid mathematical formula . . . as the

standard for determining the strength of the justifications

required for a specific sentence.” 128 S. Ct. at 595. Thus,

the fact that a sentence is 200%, or even 300%, above the

Guidelines range does not render a sentence unreasonable per se.

Rather, as the Supreme Court instructed, the relevant inquiry is

whether the justification for such deviation is “sufficiently

compelling to support the degree of the variance.” Id. at 597.

As such, the fact that Hawes’ sentence was well above the

Guidelines’ range, while relevant, does not of itself render the

district court’s decision substantively unreasonable.

3.

Finally, Hawes argues that the district court’s sentence

creates an unwarranted disparity among similar defendants

convicted of similar crimes, and that this disparity is so

severe that it requires that his sentence be vacated. In so

arguing, Hawes points this Court to a recent data report of the

Sentencing Commission detailing the median sentence and median

21
departure in identity fraud cases nationwide since the Supreme

Court’s decisions in Gall and Kimbrough. The fact that Hawes’

sentence may be more severe than the average sentence imposed in

identity fraud cases nationally does not establish that the

district court’s sentence in the present case failed to address

the “need to avoid unwarranted sentence disparities” recognized

in § 3553(a)(6). That is not to say that statistical

information is never relevant to the sentencing calculus;

indeed, it is precisely this type of information –- the typical

sentencing range for the typical defendant charged with a

particular offense -- which the Sentencing Guidelines themselves

seek to provide. “[B]y devising a recommended sentencing range

for every type of misconduct and every level of criminal

history, the Guidelines as a whole embrace ‘the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.’” United

States v. Johnson, 445 F.3d 339, 343 (4th Cir. 2006) (quoting 18

U.S.C. § 3553(a)(6)).

The determination of an appropriate sentence in any

particular case requires an individualized assessment of the

facts and circumstances presented by that particular defendant.

While Hawes argues that the Court should consider statistical

data regarding the median sentence imposed on defendants

convicted of similar crimes in reviewing his sentence, such data

22
does not provide the particulars of the defendants who were

sentenced and the crimes they committed. As such, this data

does not provide the information necessary to determine whether

the defendants who received such sentences are truly comparable

to the defendant at hand. As this Court found in United States

v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), a defendant should be

compared only to other defendants with similar circumstances and

histories. Id. at 267. Because the Court cannot possibly

determine the circumstances and histories of each individual

defendant whose sentences comprise this statistical information,

the assignment of dispositive weight to this type of data would

be antithetical to the notion of the individualized assessment

required for fashioning an appropriate sentence for a particular

defendant.

In imposing Hawes’ sentence, the district court calculated

the advisory Guidelines range, but ultimately concluded that

this case fell “outside the heartland” of those cases to which

the advisory Guidelines range was intended to apply. See Rita,

127 S. Ct. at 2465. Indeed, the district court found that this

case warranted both a departure under Application Note 19 of

U.S.S.G. § 2B1.1 and a variance under § 3553(a). Application

Note 19 provides that an upward departure may be warranted in an

identity fraud case where:

23
 (I) The offense caused substantial harm to the
victim’s reputation or credit record, or the
victim suffered a substantial inconvenience
related to repairing the victim’s reputation
or a damaged credit record.

(II) An individual whose means of identification
the defendant used to obtain unlawful means
of identification is erroneously arrested or
denied a job because an arrest record has
been made in that individual’s name.

(III) The defendant produced or obtained numerous
means of identification with respect to one
individual and essentially assumed that
individual’s identity.

U.S.S.G. § 2B1.1, app. note 19(A)(vi). As the district court

properly found, all three elements were clearly satisfied in

this case.

First, there can be no doubt that Hawes’ actions of

identity fraud caused substantial harm and inconvenience to his

victim. In the more than ten years during which Hawes stole

Burke’s identity, Hawes incurred unpaid medical bills, credit

card debt, telephone bills, cable bills, and child support

obligations in Burke’s name, all of which harmed Burke’s

reputation and credit record. Burke’s credit record was so

damaged that Burke was forced to obtain a new Social Security

number. Burke testified extensively regarding the substantial

inconvenience and stress he suffered as a result of Hawes’

conduct. Burke testified that he could never completely clean

up his credit report because “new things would pop up all the

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time. So it was a never-ending nightmare.” J.A. 45. He

described how “the collection agencies became the worst,” as

they continued to call him for over ten years for the unpaid

bills that Hawes incurred in his name. J.A. 45-46. Burke

testified that for several years, collection agencies called him

at home and at work on a daily basis. Burke estimated that he

spent “thousands of hours” trying to repair his credit record.

J.A. 46.

Hawes’ actions also caused his victim financial hardship.

Burke testified that because his credit was destroyed, he had to

pay 22 percent interest for a car loan, far higher than he

should have paid. Burke further testified that he had to pay

higher interest on credit cards, and he could not be the primary

borrower on his home mortgage. Based upon this evidence, the

district court did not err in concluding that Hawes had caused

substantial harm and inconvenience to his victim.

Second, the evidence establishes that Hawes stole Burke’s

Social Security card and birth certificate, and that he used

these means of identification to obtain a driver’s license in

Burke’s name. Hawes later committed numerous felonies using

Burke’s identity, and he was arrested, convicted, and

incarcerated for these crimes. As a result of the substantial

criminal record incurred in his name, Burke was denied a job

opportunity that would have paid him more than $20,000 more per

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year than he had been earning at the time. Burke further

testified that the criminal record compiled by Hawes had a

chilling effect on his career over the past ten years because he

was afraid to leave jobs. Burke was forced to travel to Raleigh

to be fingerprinted so that state authorities could compare his

fingerprints to those on every arrest record that Hawes had

caused authorities to open in Burke’s name. Despite Burke’s

efforts, his current job at Bank of America was delayed for more

than one month due to the existence of this criminal record.

Third, the evidence reflects that Hawes obtained numerous

means of identification with respect to Burke and essentially

assumed his identity for more than a decade. Hawes obtained a

driver’s license in Burke’s name using stolen documents. Using

Burke’s identity, Hawes married a woman in North Carolina,

fathered a child, and incurred child support obligations. Hawes

abandoned this family and moved to South Carolina, where he

fathered another child with another woman while still pretending

to be Burke. As Burke testified, “it wasn’t a case of him just

stealing my identity to get a credit card and spend[ing] a bunch

of money; he took on my identity. He was living as me in every

shape and form.” J.A. 51.

Based upon these facts, the district court was correct in

determining that an upward departure was warranted pursuant to

Application Note 19 of § 2B1.1. “When the district court

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imposes a non-Guidelines sentence based on a correct application

of the Guideline departure provisions, the resulting sentence

reflects the judgment of both the district court and the

Commission that a non-Guidelines sentence is appropriate.”

Evans, 526 F.3d at 165 n.4.

In addition to finding that an upward deviation was

justified pursuant to Application Note 19 of U.S.S.G. § 2B1.1,

the district court found that the § 3553(a) sentencing factors

as a whole justified a deviation from the Guidelines in this

case. In so finding, the district court considered the specific

“nature and circumstances of the offense,” 18 U.S.C.A.

§ 3553(a)(1). Specifically, the district court found that Hawes

had stolen Burke’s identity for more than a decade and had

caused Burke substantial harm and inconvenience during this

time. The district court further considered the “history and

characteristics of the defendant.” Id. Of particular import to

the district court was the fact that Hawes absconded after his

indictment. The district court was especially troubled by the

fact that Hawes not only continued to steal Burke’s identity

while he was a fugitive, but that he also stole the identity of

another person. Additionally, when Hawes was finally arrested

and confronted by Secret Service agents, Hawes dismissed the

gravity of the harm he had inflicted upon Burke, stating that

Burke “didn’t have a very good life to begin with.” J.A. 62.

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The district court found that Hawes’ actions following his

indictment showed a profound lack of remorse, and that the “need

for . . . deterrence in this case is greater than any case I’ve

seen in 11 years on the bench.” J.A. 98. The district court

further opined that “[t]here is no rehabilitation possible for

[a] person who so disdains his fellow man as to do what he’s

done over and over and over.” J.A. 99.

While Hawes does not contest that the district court was

entitled to depart from the Guidelines range in this case, he

argues that the extent of the deviation itself was unreasonable.

We cannot agree. Based upon the unique facts presented, the

district court concluded that a sentence of 120 months’

imprisonment was necessary in order “to promote respect for the

law,” “to provide just punishment for the offense,” “to afford

adequate deterrence,” and “to protect the public from the

further crimes of the defendant.” 18 U.S.C.A. § 3553(a)(2). We

find that the district court did not abuse its discretion in

this regard. While we may have imposed a different sentence

than the one chosen by the district court, we cannot say that

the decision to impose a sentence of 120 months’ imprisonment

falls outside the range of rational choices available to the

court. See Pauley, 511 F.3d at 474. “Although the deviation

from the Guidelines range in this case clearly is significant,

the district court provided ‘significant justification’ for the

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degree of the deviation, which is all that is required.” Evans,

526 F.3d at 163 (affirming sentence of 125 months for defendant

convicted of identity fraud, where sentence constituted 300%

upward deviation from advisory Guidelines range). For these

reasons, we conclude that Hawes’ sentence is substantively

reasonable.

IV.

After careful review, we are satisfied that the district

court’s decision to impose a non-Guidelines sentence of 120

months’ imprisonment was sufficiently justified under the

circumstances. Accordingly, we affirm the judgment of the

district court.

AFFIRMED

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