UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4640
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES THOMAS STRICKLAND, a/k/a C.T., a/k/a Tommy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:06-cr-00045-BO-2)
Argued: October 29, 2009 Decided: January 21, 2010
Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Joseph Edward Zeszotarski, Jr., POYNER & SPRUILL, LLP,
Raleigh, North Carolina, for Appellant. Anne Margaret Hayes,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, Banumathi Rangarajan, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Thomas Strickland appeals his sentence of 84
months’ imprisonment, a sentence which is substantially higher
than the top of the Sentencing Guidelines range recommended by
the pre-sentence report (“PSR”) and adopted by the district
court. Strickland contends the district court erred in imposing
his sentence because it failed to articulate the basis upon
which the above-Guidelines sentence was determined. For the
reasons set forth below, we vacate Strickland’s sentence and
remand the case to the district court for resentencing.
I.
Strickland resigned from the Robeson County, North
Carolina, Sheriff’s Office (“the Sheriff’s Office”) in 2003
after being named in a criminal information, along with other
officers in the Sheriff’s Office, for violations of the
Racketeering and Influenced Corrupt Organizations Act (“RICO”),
conspiracy to violate RICO, satellite piracy, and conspiracy to
commit money laundering. As a result of a lengthy investigation
by state and federal authorities, thirty-two employees of the
Sheriff’s Office were eventually convicted of numerous offenses,
including drug distribution, money laundering, kidnapping,
arson, assault, robbery, theft of public funds, discharge of
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firearms, satellite piracy, making false statements and
falsifying reports, and RICO violations.
Pursuant to a written plea agreement, Strickland pled
guilty to one offense, conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h). 1 As a result of the plea
agreement, the Government dismissed the remaining charges
against Strickland.
The PSR prepared by the probation officer calculated
Strickland’s recommended Guidelines sentence range. It awarded
him no criminal history points, establishing a criminal history
category of I. The PSR set the base offense level at 12
(U.S.S.G. 2S1.1(a)(1); 2B1.1(a)(2)), added two levels because
the United States had an ownership interest in the money
(2S1.1(b)(2)(B)), added 4 levels for being an organizer or
leader of a criminal activity involving five or more
participants (3B1.1(a)), and added two levels for abuse of a
position of public or private trust in a manner to facilitate
1
The conspiracy consisted of falsifying documents and
reports associated with the Sheriff’s Office participation in
the Federal Equitable Sharing Program. The Program permitted
the Sheriff’s Office to use a portion of funds seized in drug
cases to make controlled purchases of drugs and pay confidential
informants to assist in the enforcement of drug laws.
Strickland and the other conspirators had informants regularly
sign blank receipts recording greater amounts than had actually
been paid to the informants and then they recorded the higher
amounts on the Program’s audit reports. The conspirators then
used funds designated to the Program for personal use.
3
the offense (3B1.1(a)), and then subtracted three levels for
acceptance of responsibility (3E1.1(b)). The result was an
offense level of 17, which, when calculated with Strickland’s
criminal history, resulted in a guideline range for imprisonment
of 24-30 months. The PSR noted that an upward departure may be
warranted under U.S.S.G. § 5K2.21 (dismissed and uncharged
conduct), based on the acts outlined in the criminal
information: stealing property during illegal searches, arson,
and threatening violence. It further noted that Strickland
“engaged in assaultive and other criminal conduct” that had not
been used to establish the Guidelines range. (J.A. 151.)
At the outset of the sentencing hearing, the district court
expressed concern that it was “fairly outrageous, the fact that
you have all of this [other criminal conduct] conduct in the
[PSR] and guideline sentencing comes up with 24 months,” J.A.
85, and that he had “no confidence in this base offense level
being legally correct.” (J.A. 86.) He called a recess and
instructed the Government and the probation officer to
recalculate the Guidelines range.
When the sentencing hearing resumed, the Government
reiterated its position that the PSR calculation was accurate,
but noted that the court could impose a departure or variance
sentence to respond to its expressed concerns about Strickland’s
uncharged conduct and the offense characteristics. The district
4
court replied that the Guidelines range was “modest, to put it
mildly,” and
all of the factual recitation of what happened [at the
Sheriff’s Office] over the past 10 or 15 years is
outrageous. Beating people who are arrested, burning
places down, kidnapping people. It goes on and on and
on. And what I am trying to do is to bring a
connection between what was done and the lawlessness
of what was done and the punishment that is
appropriate.
(J.A. 91.) After additional dialogue with the Government
regarding the sentences that other former Sheriff’s Office
employees received and a general discussion of the district
court’s desire to hold individuals responsible for conduct they
participated in or permitted, the district court concluded it
had “no choice but to start” with the PSR’s recommended
guideline range of 24 to 30 months. (J.A. 95-96.)
The district court then stated, “I am going to consider an
upward departure or variance depending on the appropriate
consideration.” (J.A. 96.) The court and the parties engaged
in a lengthy discussion of the charges in the indictment, and
the Prosecutor noted several instances where post-indictment
investigation had revealed additional details regarding both
Strickland’s involvement and his lack of knowledge regarding
those events. The district court then recited the § 3553(a)
factors, broadly observing that it believed a “departure is
warranted,” the sentence should “keep other people who are in
5
this line of work, who are in the public trust, deterred from
letting their power turn to illegality,” and that these crimes
“were committed by law enforcement.” (J.A. 108-09.)
Defense counsel argued that even considering these factors,
a within-Guidelines sentence was appropriate, noting that other
former employees of the Sheriff’s Office had been sentenced
within their respective Guidelines ranges even when they
participated in rather than simply were aware of other criminal
activities. After an exchange between defense counsel and the
district court to clarify defense counsel’s position, the court
continued Strickland’s sentencing until the next day.
Shortly after the sentencing hearing reconvened, the
district court summarily stated that the guideline range was 24
to 30 months and that the “court is considering a variant
sentence,” and “trying to arrive at the appropriate place to
vary.” (J.A. 115-16.) The only additional fact the court noted
was that Strickland was “a witness in some of the trials” where
the convictions were being challenged based on that involvement.
Without further explanation, the district court sentenced
Strickland to a term of 84 months’ imprisonment. (J.A. 116.)
Strickland noted a timely appeal, and we have jurisdiction
pursuant to 28 U.S.C. § 1291.
6
II.
Strickland contends his sentence is procedurally
unreasonable because the district court failed to articulate the
factual basis for a sentence that is fifty-four months above the
high end of his recommended Guidelines range. He notes that
although the district court mentioned some of the § 3553(a)
factors, it did not “explain how or why those factors applied in
this case, and never made any specific findings about what it
found Strickland had done to support an upward variance.”
(Appellant’s Br. 19.) For these reasons, he asserts the
sentence should be vacated and his case remanded for
resentencing. He also requests that upon remand, the case be
assigned to a different district court judge.
We review any sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” for abuse of
discretion. Gall v. United States, 552 U.S. 38, 41 (2007). The
Supreme Court delineated our sentencing review process in Gall:
first, we “ensure that the district court committed no
significant procedural error.” Id. at 51. If, and only if, we
find the sentence procedurally reasonable, then we will
“consider the substantive reasonableness of the sentence imposed
. . . .” Id. Procedural errors include “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
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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.”
Id.
When sentencing a defendant, the district court “must make
an individualized assessment based on the facts presented.” Id.
at 50. As we explained in United States v. Carter, 564 F.3d 325
(4th Cir. 2009), this means:
the district court must “state in open court” the
particular reasons supporting its given sentence. 18
U.S.C. § 3553(c) (2006). In doing so, “[t]he
sentencing judge should set forth enough to satisfy
the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.”
Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456,
2468 (2007). This not only “allow[s] for meaningful
appellate review” but it also “promote[s] the
perception of fair sentencing.” Gall, 128 S. Ct. at
597. “Where the defendant or prosecutor presents
nonfrivolous reasons for imposing a different
sentence” than that set forth in the advisory
Guidelines, a district judge should address the
party’s arguments and “explain why he has rejected
those arguments.” Rita, 127 S. Ct. at 2468.
564 F.3d at 328. In Carter, we concluded the district court
judge failed to “justify Carter’s sentence with an
individualized rationale.” Id. at 328-29. While the district
court “offered a variety of statements” about the parties’
arguments and told the parties that it was “looking at the four
purposes in Section 3553(a)(2),” and even summarized those
purposes, it failed to “explain how those purposes applied to
8
Carter.” Id. at 329. Indeed, we observed that the “district
court’s asserted ‘reasons’ could apply to any sentence,
regardless of the offense, the defendant’s personal background,
or the defendant’s criminal history.” Id.
The district court’s explanation of Strickland’s sentence
is similarly deficient. Examining the entirety of the three
separate sentencing sessions, the district court failed to
articulate the factual basis for an above-Guidelines sentence.
As detailed above, although the district court and the
Government dialogued regarding the dismissed charges and other
offenses that occurred in the Sheriff’s Office while Strickland
was employed there, the district court failed to make any
factual findings about what offenses Strickland participated in
or knew about and how that would apply to Strickland’s sentence.
This is especially troublesome because the Government informed
the district court during the sentencing hearing that ongoing
investigation revealed Strickland had no knowledge of and had
not participated in certain offenses that had been charged
against him in the original criminal information and which were
listed in the PSR’s statement of dismissed and uncharged
conduct. Therefore, it is not clear to us what uncharged
conduct the district court relied upon in its determination that
an above-Guidelines sentence was appropriate. When determining
Strickland’s sentence, the district court offered little more
9
than a cursory observation that Strickland was a supervisor in a
Sheriff’s Office riddled with corrupt employees. Such
generalized statements are not sufficient, as they lack the
individualized assessment required to establish the particular
sentence imposed is appropriate.
Furthermore, the court did not explain how any specific
factors corresponded to the sentencing goals of § 3553(a), so as
to articulate a basis for arriving at the particular sentence it
imposed. It is true that under the sentencing structure set
forth in Gall, a district court need not “robotically tick
through § 3553(a)’s every subsection.” United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the
district court’s discretion in sentencing must still be
exercised in a manner that permits a reviewing court to
understand the legal and factual basis for its decision. See
Carter, 564 F.3d at 330 (“This individualized assessment need
not be elaborate or lengthy, but it must provide a rationale
tailored to the particular case at hand and adequate to permit
‘meaningful appellate review.’”). Here, we cannot discern from
the district court’s limited allocution what the factual basis
for its decision was or what specific considerations the court
found relevant to its determination of an appropriate sentence.
Accordingly, the record does not allow us to perform any
meaningful appellate review of Strickland’s sentence.
10
When an above-Guidelines sentence is imposed, 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.” Gall, 552 U.S. at 50. In Gall, the
Supreme Court observed that it was “uncontroversial that a major
departure should be supported by a more significant
justification than a minor one.” Id. “But a district court
need not justify a sentence outside the Guidelines range with a
finding of ‘extraordinary’ circumstances.” United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008) (citing Gall, 552 U.S.
at 47, 59). Given that Strickland’s sentence is 54 months
higher than the top of the Guidelines range, Gall required the
district court to provide a justification consistent with that
degree of deviation from the Guidelines. See Gall, 552 U.S. at
47, 49. The district court’s explanation thus should not only
be sufficient to show that a deviation is warranted, but also to
support the degree of deviation made. Because the district
court’s explanation fell substantially short of this duty, it
committed a procedural error in sentencing Strickland, and the
case must be remanded for resentencing. 2 3
2
Strickland also contends the district court committed
procedural error sentencing him to a variance sentence without
first considering a departure sentence. However, Strickland
concedes the Guidelines calculation is correct and this is not a
case where the sentencing court undertook to depart under the
(Continued)
11
Guidelines and then erred in applying a particular Guidelines
provision. The sentencing hearing transcript reflects that the
district court interchangeably referred to sentencing Strickland
to an above-Guidelines departure or variance sentence, without
distinguishing between the two.
While it is true that a sentencing court errs if it fails
to correctly calculate the applicable Guidelines range, Gall,
552 U.S. at 49, the Guidelines are merely the beginning of the
court’s determination of a proper sentence. See Evans, 526 F.3d
at 160. Thus, we have held that a district court’s sentence was
procedurally reasonable even where the Guidelines would not have
permitted the upward departure relied upon by the district
court, because the district court also adequately explained its
sentencing decision in light of the § 3553(a) considerations.
Id. at 164. As we explained in Evans:
[A]lthough 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
Guidelines departure provisions or on other factors so
long as it provides adequate justification for the
deviation.
When reviewing the sentence selected by the
district court, regardless of whether the court
deviates from the advisory Guidelines range because of
a Guidelines-sanctioned departure, or because of one
or more § 3553(a) factors, or because of some other
reason – that is, no matter what provides the basis
for a deviation from the Guidelines range – we review
the resulting sentence only for reasonableness.
Id. (citations omitted).
Accordingly, had the district court’s articulation been
sufficient under either the Guidelines departure provisions or
the § 3553(a) factors, the fact that the district court provided
the latter rather than the former does not, in itself,
constitute procedural error. Rather, it is the fact that the
district court did not adequately explain its decision using
either of these criteria that is the basis for our conclusion
that procedural error occurred.
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III.
Strickland requests that the case be assigned to a
different district court judge on remand. This Court has
previously examined such requests using the three-part test
delineated by the Second Circuit Court of Appeals in United
States v. Robin, 553 F.2d 8 (2d Cir. 1977) (per curiam):
(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)
(quoting Robin, 553 F.2d at 10). We have considered these
factors and reviewed the record, and conclude that Strickland
has satisfied this burden. Accordingly, we direct that on
remand, the case be assigned to a different judge for
sentencing.
3
Because we agree that Strickland’s sentence was
procedurally unreasonable, we need not address his additional
argument that the sentence is also substantively unreasonable.
See Gall, 552 U.S. at 50.
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IV.
For the aforementioned reasons, we vacate Strickland’s
sentence and remand for resentencing in accordance with this
opinion. We also direct that this case be assigned to a
different judge on remand.
VACATED AND REMANDED
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