UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4908
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO CAMERON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00331-BO-1)
Submitted: July 7, 2009 Decided: August 12, 2009
Before MICHAEL, MOTZ, AND SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. George E.B. Holding, United
States Attorney, Ann 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Unpublished opinions are not binding precedent in this circuit.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:
Antonio Cameron timely appeals from the 144-month
sentence imposed after his guilty plea pursuant to a written
plea agreement, to one count of possession of fifteen or more
counterfeit and unauthorized access devices, in violation of 18
U.S.C. § 1029(a)(3) (2006) (Count 1), and one count of
aggravated identity theft, in violation of 18 U.S.C. § 1028A
(2006) (Count 2). On appeal, Cameron argues that: (1) he was
prejudiced by the district court’s failure to give notice of its
intent to sentence him above the advisory Guidelines range;
(2) his sentence is unreasonable; and (3) his case should be
reassigned to another district court judge on remand. We affirm
Cameron’s conviction, but vacate his sentence and remand for
resentencing.
I.
Cameron first asserts that the district court erred by
failing to give him pre-hearing notice, pursuant to Federal Rule
of Criminal Procedure 32(h), that it was considering an upward
variance. Rule 32(h) requires the sentencing court to give the
parties “reasonable notice” that it is considering a departure
from the applicable Guidelines range “on a ground not identified
for departure either in the presentence report or in a party’s
prehearing submission.” Fed. R. Crim. P. 32(h). Cameron relies
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our decision in United States v. Fancher, 513 F.3d 424, 430 (4th
Cir. 2008) for the proposition that Rule 32(h) applies to
variances. However, after Fancher, the Supreme Court considered
the same issue, concluding that Rule 32(h) does not apply to
variances. Irizarry v. United States, 128 S. Ct. 2198, 2202
(2008). Accordingly, the district court did not err by failing
to give Cameron notice that it was considering an upward
variance.
Cameron also asserts that the lack of notice violated his
right to due process. However, the Irizarry Court unambiguously
concluded that “[t]he due process concerns that motivated the
Court to require notice in a world of mandatory Guidelines no
longer provide a basis” to extend Rule 32(h) to variance
sentences, since the Guidelines are now advisory. Id. Thus,
Cameron’s due process argument fails.
II.
Most of Cameron’s remaining arguments question the
reasonableness of his sentence. Consistent with United
States v. Booker, 543 U.S. 220 (2005), the district court is
required to follow a multi-step process at sentencing. First,
it must calculate the proper sentencing range prescribed by the
Guidelines. Gall v. United States, 552 U.S. 38, __, 128 S. Ct.
586, 596 (2007); see also United States v. Abu Ali, 528 F.3d
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210, 260 (4th Cir. 2008). It must then consider that range in
light of the parties’ arguments regarding the appropriate
sentence and the factors set out in 18 U.S.C. § 3553(a) (2006),
before imposing its sentence. Gall, 128 S. Ct. at 596; see also
Abu Ali, 528 F.3d at 260. If the district court determines that
a sentence outside the Guidelines is appropriate, the court
“should first look to whether a departure is appropriate based
on the Guidelines Manual or relevant case law.” United States
v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). If the district
court determines that a departure is inappropriate, it may
impose a variance sentence. Id. We review the district court’s
sentence for abuse of discretion. Gall, 128 S. Ct. at 591.
When reviewing the district court’s sentence, we must
first ensure the district court did not commit any “significant
procedural error,” such as failing to consider the 18 U.S.C.
§ 3553(a) factors or “failing to adequately explain the chosen
sentence – including an explanation for any deviation from the
Guidelines range.” Id. at 597. The district court is not
required to “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). However, the district court must “place on the
record an individualized assessment based on the particular
facts of the case before it. This individualized assessment
need not be elaborate or lengthy, but it must provide a
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rationale tailored to the particular case at hand and adequate
to permit meaningful appellate review.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks, footnote, and citations omitted). Further, in imposing a
variance sentence, the district court “must consider the extent
of the deviation and ensure that the justification is
significantly compelling to support the degree of the variance.
. . . [I]t [is] uncontroversial that a major departure should be
supported by a more significant justification than a minor one.”
Gall, 128 S. Ct. at 597.
When imposing Cameron’s sentence, the district court
failed to provide a sufficient, individualized assessment of the
§ 3553(a) factors as required by Carter. Given the extent of
the upward variance, we find that the district court’s brief
explanation does not adequately explain the reasons for the
variance. See Carter, 564 F.3d at 328-29. Accordingly, we
conclude that the district court committed procedural error and
thus abused its discretion when imposing sentence. * We thus
vacate Cameron’s sentence and remand for resentencing.
*
Because we find that Cameron’s sentence is procedurally
unreasonable, we need not consider whether his sentence is
substantively unreasonable. See Gall, 552 U.S. at __, 128 S.
Ct. at 597.
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III.
Cameron requests that his case be assigned to a
different judge on remand. The propriety of reassigning a case
depends on:
(1) whether the original judge would reasonably be
expected upon remand to have substantial
difficulty in putting out of his or her mind
previously expressed views or findings determined
to be erroneous or based on evidence that must be
rejected,
(2) whether reassignment is advisable to preserve the
appearance of justice, and
(3) whether reassignment would entail waste and
duplication out of proportion to any gain in
preserving the appearance of fairness.
United States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1991)
(internal citation omitted), superseded on other grounds by
statute, United States v. Pridigen, 64 F.3d 147, 150 n.3 (4th
Cir. 1995). Counsel has conceded that he is not sure Cameron’s
request meets the requirements of Guglielmi. Having considered
the Guglielmi factors, we find that it is unnecessary to
reassign this case to a different judge.
For the foregoing reasons, we affirm Cameron’s
convictions, but vacate his sentence and remand for
resentencing. We dispense with oral argument because the facts
and legal conclusions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
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AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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