United States v. Dillon

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4584

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY BERNARD DILLON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:04-cr-00456-WDQ-1)

Argued: October 30, 2009 Decided: December 9, 2009

Before MICHAEL, KING, and AGEE, Circuit Judges.

Vacated and remanded for resentencing by unpublished per curiam
opinion.

ARGUED: Gary Allen Ticknor, Elkridge, Maryland, for Appellant.
Judson T. Mihok, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Anthony Bernard Dillon pled guilty, pursuant to a written

plea agreement, to fraudulent use of an access device in

violation of 18 U.S.C. § 1029(a)(5). Dillon’s advisory

Guidelines range was calculated at 30 to 37 months’

imprisonment, but the district court departed upward sentencing

him to 87 months of incarceration. On appeal, we vacated and

remanded the sentence based on several procedural errors at

Dillon’s first sentencing hearing. See United States v. Dillon,

251 Fed. Appx. 171, 173 (4th Cir. 2007) (unpublished). At

resentencing, the district court again deviated upward from the

suggested Guidelines range, this time imposing an 84-month

sentence. Dillon now raises several issues related to the

procedural reasonableness in the imposition of his sentence. We

exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291. For the reasons set forth below, we again vacate

Dillon’s sentence and remand to the district court for

resentencing.

2
 I.

The Presentence Investigation Report (“PSR”) in this case

placed Dillon’s base-offense level at 6. 1 After incorporating 2-

level increases for causing a loss exceeding $5,000, having 10

or more victims, stealing from a person, and using sophisticated

means, as well as a 2-level reduction for acceptance of

responsibility, the PSR established an adjusted-offense level of

12. In combination with a criminal history category of VI, the

PSR yielded a suggested Guidelines range of 30 to 37 months’

imprisonment. The PSR did not list any grounds for an upward

departure from the advisory Guidelines range.

At the first sentencing proceeding, Dillon and the

Government requested the district court impose a sentence within

the suggested Guidelines range. 2 The district court declined to

do so because of Dillon’s extensive criminal history:

You have, by my count, and discounting the drug
conviction, 23 convictions in seven different states:
Minnesota, Indiana, Florida, Ohio, Illinois, Texas,
New York. You’ve used 29 aliases in your career, and
although it is common, I suppose, these things, in
theft cases, your case is an extraordinary one, in the
geographic range of your theft activities, and over

1
Dillon pled guilty to credit card fraud in violation of 18
U.S.C. § 1029(a)(5) after authorities located stolen credit and
bank cards, counterfeiting materials, and various stolen goods
and identification documents in his possession.
2
Dillon’s plea agreement obligated the Government to
recommend a sentence within the advisory Guidelines range.

3
 the period of time, you have convictions at the age of
18, 19, 21, 22, 24, 25, 26, 29, 30, 33, 36, 38, 39,
each of these ages you’ve got convictions and some
years multiple convictions, and I note that this
offense was done when you were on parole for a robbery
offense.

Joint Appendix (“J.A.”) at 51.

Dillon’s “appalling record” prompted the district court to

conclude that an extended term of imprisonment was necessary to

protect the public and to give Dillon the chance “to make

preparations in some fashion for a non criminal career.” Id. at

51-52. The district court then determined that to accomplish

that goal it would make an upward departure under the Guidelines

from a criminal history category VI, offense level 12. The

court did not specifically reference U.S.S.G. § 4A1.3(a), but

stated: “I am going to depart upward in the advisory

[G]uidelines to sentence you at a Criminal History VI and

offense level 22. I’m going to impose a sentence at the bottom

of those [G]uidelines; that is an 87-month sentence. That’s a

seven-year sentence.” 3 Id. at 53.

3
There is some confusion as to whether the district court
originally intended to impose a sentence of 84 or 87 months. As
we explained in our first opinion in this case, the district
court’s “orally pronounced sentence was eighty-seven months” and
“the orally pronounced sentence controls.” Dillon, 251 Fed.
Appx. at 172 n.1; see also United States v. Morse, 344 F.2d 27,
29 n.1 (4th Cir. 1965).

4
 On appeal, Dillon argued the district court erred in

departing upward without providing prior notice, or following

the “incremental approach” mandated by both § 4A1.3(a)(4)(B) and

our precedent. See Dillon, 251 Fed. Appx. at 172-73. We held

that the district court “adequately stated its reasons for

departing pursuant to § 4A1.3” and that “the departure was based

on proper factors.” Id. at 173.

However, we vacated Dillon’s sentence because the district

court failed to provide “either the incremental analysis

required by § 4A1.3 or the extensive justification required by

dramatic departures.” Id. (quotations omitted). On remand, we

stated the district court “should explain why category VI is

inadequate, and ‘move incrementally down the sentencing table to

the next higher offense level until it [found] a guideline range

appropriate to the case.’” Id. (quoting U.S.S.G.

§ 4A1.3(a)(4)(B)). We provided this stipulation because the

district court “said nothing about how it determined the extent

of the departure.” 4 Id.

4
We also held that the district court erred in failing to
give Dillon notice of its intent to depart from the suggested
Guidelines range before it imposed sentence. See Dillon, 251
Fed. Appx. at 172-73; see also Fed. R. Crim. P. 32(h). Dillon
does not raise any notice issue in the instant appeal and we
consider none. See also Irizarry v. United States, 128 S. Ct.
2198, 2201-02 (2008).

5
 Upon remand, Dillon’s second sentencing proceeding

commenced after the Supreme Court issued its decision in Gall v.

United States, 552 U.S. 38 (2007). The district court initially

opined that, after Gall, “some of the considerations” we relied

upon in remanding Dillon’s case for resentencing were “perhaps

no longer operative.” J.A. at 64. Then, the court reaffirmed

its sentence was a departure under the Guidelines and noted the

Fourth Circuit had confirmed that “I adequately stated the

reasons for departing and the departure was based on proper

factors; however, there is some disagreement on the part of the

Fourth Circuit with the degree or the magnitude of the

departure.” Id. at 65. Despite the direction of our mandate,

the district court never mentioned U.S.S.G. § 4A1.3(a) or

described an upward departure analysis under that section. The

district court’ sentence and rationale was the following:

I think, in reanalyzing the case under Gall, I come
out the same place where I was when I imposed the
original sentence; that is, Mr. Dillon, I commit you
to serve a term of imprisonment of 84 months with the
remaining conditions as imposed, and I do that in
light of the numerous convictions in numerous
jurisdictions which I detailed at the original
sentencing, which was noted by the Court of Appeals in
its decision. I incorporate from that original
sentencing my reasoning.

Id.

6
 II.

Under Gall, we review all sentences for reasonableness

under a “deferential abuse-of-discretion standard,” regardless

of whether the sentence selected by the district court is

“inside, just outside, or significantly outside” the suggested

Guidelines range. Gall, 552 U.S. at 41. Appellate review under

this standard encompasses a procedural and a substantive

component. See United States v. Heath, 559 F.3d 263, 266 (4th

Cir. 2009).

To ensure a sentence is procedurally reasonable, we inquire

whether the district court followed the correct path in reaching

its selected sentence. Significant deviations from this path,

“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,” require resentencing. Gall, 552

U.S. at 51. Compliance with these procedural requirements is

important because they ensure the district court gives “serious

consideration to the extent of any departure from the

Guidelines,” which are “the product of careful study based on

extensive empirical evidence derived from the review of

thousands of individual sentencing decisions.” Id. at 46. Only

7
if a sentence is procedurally reasonable do we proceed to

consider the substantive reasonableness of the district court’s

chosen sentence. See United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009).

III.

In this appeal, Dillon argues that his 84-month sentence is

procedurally unreasonable because the district court effected a

10-level Guidelines departure without employing the “incremental

approach” established by § 4A1.3(a)(4)(B) and did not follow the

mandate of this Court as we instructed on remand. Thus, Dillon

maintains his sentence should be vacated as procedurally

unreasonable and that he is entitled to a new sentencing

hearing. 5

5
Dillon makes the alternative argument on appeal that even
if the district court varied from the Guidelines at his second
sentencing proceeding under the factors laid out in 18
U.S.C. § 3553(a), the district court did not sufficiently
explain how it reached its chosen sentence. Because we vacate
the sentence on other grounds, we do not address this
contention. Dillon also argues that at least one of the
district court’s reasons for departing upward from the suggested
Guidelines range is not supported by the record. Again, because
we remand for resentencing on other grounds, we do not address
this argument on appeal. See United States v. Passaro, 577 F.3d
207, 223 (4th Cir. 2009). Nothing in our decision should be
construed to prevent Dillon from presenting these arguments to
the district court on remand. See id.

8
 A.

The “same facts and analyses” may support “a Guidelines

departure and a variance,” but these concepts remain “distinct”

even after the Supreme Court’s decision in Gall. United States

v. Grams, 566 F.3d 683, 687 (6th Cir. 2009). Indeed, the

Supreme Court explained in Irizarry v. United States, 128 S. Ct.

2198 (2008) that a “[d]eparture” is a “term of art” that refers

to a non-Guidelines sentence “imposed under the framework set

out in the Guidelines.” 128 S. Ct. at 2202. A “variance[],” in

contrast, denotes a non-Guidelines sentence reached under the

factors laid out in “18 U.S.C. § 3553(a).” Id. at 2203.

Whether the district court chooses to depart or vary from

the suggested Guidelines range has “real consequences for an

appellate court’s review.” United States v. Brown, 578 F.3d

221, 226 (3d Cir. 2009). The Supreme Court in Irizarry, for

example, held that Federal Rule of Criminal Procedure 32(h)’s

notice requirement applies to departures, but not to variances. 6

See Irizarry, 128 S. Ct. at 2201-02. Furthermore, the

“permissible factors justifying traditional departures differ

6
Rule 32(h) requires the district court to give “the
parties reasonable notice” if it intends to depart 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).
The notice rendered under this section “must specify any ground
on which the court is contemplating a departure.” Id.

9
from — and are more limited than — the factors a court may look

to in order to justify a post-Booker variance.” United States

v. Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006); see also

United States v. Chase, 560 F.3d 828, 830 (8th Cir. 20009);

United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir. 2008).

Because departures are thus “subject to different requirements

than variances,” United States v. Floyd, 499 F.3d 308, 311 (3d

Cir. 2007), it is important for district courts to “‘articulate

whether a sentence is a departure or a variance from an advisory

Guidelines range.’” Brown, 578 F.3d at 226 (quoting United

States v. Vampire Nation, 451 F.3d 189, 198 (3d Cir. 2006)). 7

The district court’s intention to effect a departure at

Dillon’s initial sentencing proceeding is not in doubt, as the

court explained that it would “depart upward in the advisory

[G]uidelines to sentence [Dillon] at a Criminal History

[Category of] VI and offense level [of] 22” — not the offense

level of 12 contained in the PSR. J.A. at 53. On remand, the

district court gave no indication that it intended to sentence

Dillon other than by the same upward departure. The court noted

that “I adequately stated the reasons for departing and the

7
See Grams, 566 F.3d at 688 (remanding for resentencing
based, in part, on the district court’s failure to explain
whether it departed or varied from the defendant’s suggested
Guidelines range).

10
departure was based on proper factors . . . and I incorporate

from that original sentencing my reasoning.” Id. at 65

(emphasis added). The district court relied almost exclusively

on its prior departure analysis in sentencing Dillon to 84

months’ imprisonment. Thus, it is clear Dillon’s current

sentence is based on a Guidelines departure.

B.

Having confirmed that Dillon’s 84-month sentence

constitutes a departure by the district court from the

Guidelines range, we now turn to Dillon’s contention that the

district court erred in failing to follow the “incremental

approach” under U.S.S.G. § 4A1.3(a)(4)(B) as our precedent for

upward departures from a criminal history category VI indicates

and as our mandate directed. The “extent” of an upward

departure under § 4A1.3 is generally determined by reference to

the criminal history category that “most closely resembles that

of the defendant’s.” U.S.S.G. § 4A1.3(a)(4)(A). But a

different procedure is required where, as here, the defendant

already possesses a criminal history category of VI — the

maximum criminal history category established by the Guidelines.

In that case, the Guidelines instruct the district court to move

“incrementally down the sentencing table to the next higher

11
offense level in Criminal History Category VI until it finds a

guideline range appropriate to the case.” Id. § 4A1.3(a)(4)(B).

The district court, however, appeared to believe that the

Supreme Court’s decision in Gall obviated the need for it to

follow the incremental procedure required by § 4A1.3(a)(4)(B),

our precedent, and the mandate when sentencing based on an

upward departure. This conclusion was in error.

In Gall, the Supreme Court addressed a variance imposed

under the factors laid out in § 3553(a), not a departure

conducted pursuant to the Guidelines. 8 See United States v.

Autery, 555 F.3d 864, 872 n.7 (9th Cir. 2009). Our precedent

relating to the proper procedures for executing Guidelines

departures when that is the procedure utilized by the district

court remains unaltered by the Supreme Court’s decision in

Booker and subsequent sentencing cases. See, e.g., United

States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007); United

States v. Rusher, 966 F.2d 868, 885 (4th Cir. 1992). As the

Tenth Circuit explained, “[w]hile Booker made application of the

8
See Gall, 552 U.S. at 56 (“The Court of Appeals gave
virtually no deference to the District Court's decision that the
§ 3553(a) factors justified a significant variance in this
case.”); id. at 59-60 (“[I]t is not for the Court of Appeals to
decide de novo whether the justification for a variance is
sufficient . . . . On abuse-of-discretion review, the Court of
Appeals should have given due deference to the District Court's
. . . decision that the § 3553(a) factors, on the whole,
justified the sentence.”).

12
sentencing [G]uidelines advisory rather [than] mandatory, it did

not impact pre-existing law concerning the interpretation of any

sentencing guideline or expand the availability of departures

under the sentencing [G]uidelines.” United States v. Beltran,

571 F.3d 1013, 1019 (10th Cir. 2009). Thus, when a district

court proceeds to impose a sentence based on the Guidelines, it

must correctly follow the Guidelines to avoid an error of

procedural unreasonableness.

The Supreme Court’s sentencing cases simply establish that

district courts have the “discretion to vary from the

[Guidelines] range if a variance” is appropriate under 18 U.S.C.

§ 3553(a). 9 Id. We discussed the Supreme Court’s recent

development of non-Guidelines methods for deviating from the

Guidelines range in United States v. Evans, 526 F.3d 155 (4th

Cir. 2008), in which we explained:

Gall and Rita . . . firmly establish that
although adherence to the advisory Guidelines
departure provisions provides one way for a district
court to fashion a reasonable sentence outside the
Guidelines range, it is not the only way. Rather,
after calculating the correct Guidelines range, if the
district court determines that a sentence outside that
range is appropriate, it may base its sentence on the

9
Cf. United States v. Lofink, 564 F.3d 232, 240 n.17 (3d
Cir. 2009) (“The Supreme Court has given wide latitude to
district courts to vary from the Guidelines range under
§ 3553(a) . . . . But it has not extended that latitude to a
district court’s procedure for determining the advisory
Guidelines range.”).

13
 Guidelines departure provisions or on other factors
[i.e., the 18 U.S.C. § 3553(a) factors] so long as it
provides adequate justification for the deviation.

526 F.3d at 164. Because the district court in this case chose

to make its sentence for Dillon as an upward departure under the

Guidelines, not a variance or other factor as allowed by the

Supreme Court’s recent cases, the traditional rules for

Guidelines departures continued to apply.

The district court thus procedurally erred in failing to

conduct the “incremental analysis” required for departures

beyond a criminal history category of VI. We do not “require a

sentencing judge to move only one” offense level at a time,

rejecting “each and every intervening level” in turn. Dalton,

477 F.3d at 199 (quotations omitted). We do, however, require

the district court to adequately explain its decision to deviate

from the Guidelines range and the applicable Guidelines

requirements like U.S.S.G. § 4A1.3(a)(4). See United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). In

other words, the district court “must expressly articulate not

only the legal and factual reasons for a departure, but also the

logical foundation for the degree of departure selected.”

United States v. Robertson, 568 F.3d 1203, 1214 (10th Cir.

2009). Furthermore, the district court should tie its rationale

for the extent of a particular departure to the Guidelines’

14
“existing structure.” See United States v. Cash, 983 F.2d 558,

561 (4th Cir. 1992); see also U.S.S.G. § 4A1.3(a)(4).

Moreover, the district court was not free to ignore our

mandate. As noted above, its view that Gall voided the mandate

as to following U.S.S.G. § 4A1.3(a)(4)(B) was incorrect under

the facts of this case. Accordingly, as our precedent clearly

holds, the district court was required to follow the direction

of our mandate upon remand. 10 See, e.g., Invention Submission

Corp. v. Dudas, 413 F.3d 411, 414-15 (4th Cir. 2005).

The district court sufficiently explained the legal and

factual bases for its decision to depart, see Dillon, 251 Fed.

Appx. at 173, as we frequently approve upward deviations from

the suggested Guidelines range based on a defendant’s

intransigent recidivism. See, e.g., Heath, 559 F.3d at 268;

Evans, 526 F.3d at 163-64. But a district court does not

fulfill its “explanatory duty merely by stating the bases for

the departure;” it must also disclose its “reasons for the

sentence actually imposed.” Robertson, 548 F.3d at 1214-15; see

also United States v. Moreland, 437 F.3d 424, 432 (4th Cir.

10
To the extent our prior decision directed the district
court to provide an “extensive justification required by
dramatic departures,” Dillon, Fed. Appx. at 173, that
proposition was negated by Gall. See 542 U.S. at 47 (“We reject
. . . an appellate rule that requires ‘extraordinary’
circumstances to justify a sentence outside the Guidelines
range.”).

15
2006). Because the district court chose to base the sentence on

a Guidelines upward departure, it was necessary, as a matter of

procedural reasonableness, that the district court follow the

Guidelines’ existing structure as required by § 4A1.3 and our

precedent. “It is axiomatic that a district court commits

reversible procedural error when it fails to explain a departure

or variance.” United States v. Passaro, 577 F.3d 207, 223 (4th

Cir. 2009).

We, therefore, vacate Dillon’s sentence and remand for

resentencing. See United States v. Perez-Pena, 453 F.3d 236,

241 (4th Cir. 2006). In resentencing, the district court should

explain why category VI, offense level 12 is inadequate, “moving

incrementally down the sentencing table to the next higher

offense level in . . . [c]ategory VI until it finds a guideline

range appropriate to the case.” U.S.S.G. § 4A1.3(a)(4)(B); see

also Dalton, 477 F.3d at 200 n.3.

VACATED AND REMANDED FOR RESENTENCING

16