UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS OHIN, a/k/a Shaka,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:08-cr-00026-HCM-FBS-1)
Argued: May 14, 2010 Decided: June 16, 2010
Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Larry Mark Dash, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Norfolk, Virginia, for Appellant. Robert Edward Bradenham II,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Frances H. Pratt, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, Acting United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas Ohin appeals his sentence of 276 months’
imprisonment, a sentence that is higher than the top of the
Sentencing Guidelines range adopted by the district court. Ohin
contends the district court committed various procedural errors
in determining his sentence. For the reasons set forth below,
we find no merit to Ohin’s assertions and affirm the judgment of
the district court.
I.
Without a written plea agreement, Ohin pled guilty to two
counts of carjacking, in violation of 18 U.S.C. § 2119. The
convictions arose from two February 2007 incidents that occurred
in Newport News, Virginia. During the first (“Count I”), Ohin
forced a female delivery driver into her vehicle after grabbing
and repeatedly striking her in the back of the head with a
screwdriver when she tried to flee. After driving several
blocks, Ohin pushed the woman out of the vehicle. The woman was
treated at a local hospital and hospitalized for a week due to
her extensive injuries. 1 Two days later (“Count II”), Ohin
1
The treating physician described the woman’s injuries as
follows:
[She] had a severe distortion of her face due to the
swelling that was most significant around her eyes and
bleeding in the left eye. Her scalp was filled with
(Continued)
2
entered a vehicle stopped at an intersection and forced the male
driver to exit. The driver reported the incident, and later in
the day, a police officer observed Ohin driving the stolen
vehicle. Ohin engaged in a high speed attempt to evade capture,
but was ultimately stopped and arrested.
After hearing the parties’ arguments, the district court
agreed with Ohin that the PSR miscalculated one component of the
Guidelines calculation related to the offense characteristics of
Count II. The court recalculated the Guidelines range using a
lower offense level, which resulted in Ohin receiving a total
combined offense level of 31. When coupled with a criminal
history category of VI, 2 Ohin’s Guidelines range was calculated
to be 188 to 235 months’ imprisonment.
Next, the district court permitted the Government to call
the victim of Count I to testify. She described the events
fresh and dried blood from multiple lacerations. Her
face was so badly beaten that it was difficult to see
her facial features. Her abdomen was bruised and
extremely tender. Multiple lacerations with bleeding
were over the abdomen, both arms and her back.
(J.A. 88.)
2
The pre-sentence report (“PSR”) identified numerous
convictions, arrests, and pending charges, primarily involving
larceny and possession of stolen goods, assault, and possession
and distribution of controlled substances. These offenses dated
from 1995 (age 19) through the time of the carjackings (2007).
Based on these charges, the PSR placed Ohin in the highest
criminal history category, Category VI.
3
surrounding that incident, and testified Ohin stabbed her
approximately 22 times with a screwdriver. She further
testified that although her physical wounds had since healed,
she was “scared to death to go anywhere by” herself and was
still undergoing regular mental health therapy. Ohin did not
cross-examine the witness, or present any other evidence.
The district court then allowed both parties to allocate as
to an appropriate sentence. The Government contended the
Guidelines range was too low and asked the court to impose a
sentence “toward” the statutory maximum because there was not
“any more severe case that could have occurred [in Count I]
outside of [the victim] being killed by this defendant.” (J.A.
61-62.) Ohin replied that a within-Guidelines sentence was
appropriate in light of his acceptance of responsibility, the
need for substance abuse treatment, and the ability to earn
restitution for the victim upon release. 3
The district court stated “the starting point when a person
is considering an appropriate sentence under the statutory
sentencing factors should be the maximum sentence available
under the statute, because it is this kind of case for which the
maximum was contemplated.” (J.A. 66.) It then noted that Ohin
3
Neither party requested a departure, nor did the PSR
provide notice of any grounds for a departure sentence.
4
“deserves some type of credit” for pleading guilty, but then
focused its comments on the “extremely troubling and
substantial” injuries the victim in Count I received, as well as
Ohin’s extensive criminal history. (J.A. 67.) The district
court thus concluded that a “varying sentence greater than the
maximum under the guidelines is appropriate . . . because there
are very few factors to mitigate what would be a maximum
sentence under the statute.” (J.A. 67.) Accordingly, it
sentenced Ohin to 276 months’ imprisonment on Count I and 180
months on Count II, to be served concurrently.
The district court subsequently also set forth its reasons
for imposing this sentence in a written opinion and order. The
written order delineated Ohin’s offenses, the statutory
maximums, and the properly-calculated Guidelines range. It
outlined the § 3553(a) factors and reiterated its duties in
imposing a sentence, including the circumstances when a variance
sentence is appropriate. The court then held that a Guidelines
sentence “did not serve the factors listed under 18 U.S.C. §
3553(a)” because while Ohin “should receive some benefit from
entering a guilty plea . . . such a plea was the only mitigating
factor concerning the term of imprisonment imposed.” (J.A. 80.)
It stated that it was important to look not just “to the
advisory Guidelines range, but also to the maximum term of
imprisonment provided by the statute” and “it was difficult to
5
imagine a worse case under the statute than this one and . . .
this case is the type for which the maximum term of imprisonment
was contemplated.” (J.A. 80.) Ohin noted a timely appeal,
and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
II.
Ohin contends his sentence is procedurally unreasonable
because the district court started its sentencing decision based
on the 300-month statutory maximum and “worked down” to
determine a sentence rather than starting with the 188-235 month
Guidelines range. He also asserts the district court failed to
explain why the Guidelines range was insufficient and why a
departure sentence would not adequately address its concerns
before deciding to impose a variance sentence. Lastly, Ohin
maintains that the court did not adequately explain the basis
for its sentence. For these reasons, he requests that we vacate
the sentence and remand for resentencing.
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
6
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)
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.
Ohin’s first argument centers on the district court’s
statement from the bench that “the starting point when a person
is considering an appropriate sentence under the statutory
sentencing factors should be the maximum sentence available
under the statute . . . .” (J.A. 66.) Read in isolation, this
statement is incorrect. “[T]he Guidelines should be the
starting point and the initial benchmark” of sentencing. Gall,
552 U.S. at 49 (emphasis added). Read in context, however, we
conclude that the statement does not require us to vacate Ohin’s
sentence because the district court undertook the proper
analysis before determining what sentence to impose.
For example, the district court’s written opinion clearly
sets out the proper basis for determining a sentence and
reflects the court’s statement from the bench on the maximum
7
sentence available was a misstatement that did not guide the
court’s actual determination.
The Court must fashion a sentence that is
“sufficient, but not greater than necessary” to serve
the sentencing factors set forth under 18 U.S.C. §
3553(a). United States v. Davenport, 445 F.3d 366,
370 (4th Cir. 2006). First, the Court must determine
whether or not the sentencing range suggested by the
advisory Guidelines serves these factors. See, e.g.,
United States v. Hampton, 441 F.3d 284, 287 (4th Cir.
2006). . . . If the resulting sentence still does not
serve the § 3553(a) factors, then the Court may impose
a variance sentence, i.e., a sentence that does not
fall within the advisory Guidelines range, provided
that the variance sentence falls within any statutory
limitations and is “sufficient, but not greater than
necessary, to comply with the purposes of [18 U.S.C. §
3553(a)(2).” Davenport, 445 F.3d at 370 (citation
omitted).
(J.A. 79.) (Emphasis added.)
Even prior to its “starting point” statement, the district
court had correctly calculated Ohin’s Guidelines range. 4 See
United States v. Engle, 592 F.3d 495, 499-500 (4th Cir. 2010).
It then listened to and considered the parties’ arguments as to
an appropriate sentence. See id. at 500. Addressing the §
3553(a) factors – specifically, the nature and characteristics
of the offense as well as the defendant’s criminal history – the
court concluded that an above-Guidelines sentence was
appropriate. See id. While the court considered the statutory
4
Ohin concedes the district court correctly calculated the
Guidelines range and he raises no claim of error in that regard.
8
maximum in arriving at that sentence, it did not make the
statutory maximum the sole basis for its decision. The court’s
methodology satisfied Gall and does not warrant reversal. See
id. at 500; Gall, 552 U.S. at 49-52.
Next, Ohin asserts that the district court’s approach to
the sentencing process was improper because it moved directly
from the calculation of the Guidelines range to imposing a
variance sentence without first considering whether the
Guidelines’ departure provisions would adequately address its
concerns. That argument is foreclosed by this Court’s opinion
in United States v. Evans, 526 F.3d 155 (4th Cir. 2008). In
Evans, we held that although the district court may have erred
in concluding certain Guidelines-based departure provisions
applied, because the district court also adequately explained
its sentence in terms of the § 3553(a) factors as a basis for a
variance sentence, Evans’ sentence was reasonable. Id. at 164.
In so holding, we stated:
[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.
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Id. The district court thus did not err in moving directly to
the § 3553(a) factors and immediately considering a variance
sentence once it determined that an above-Guidelines sentence
was appropriate. 5
Lastly, Ohin asserts the district court failed to
adequately explain the basis for its sentence. The district
court “must make an individualized assessment based on the facts
presented” when it sentences a defendant. Gall, 552 U.S. 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,
5
Ohin’s argument that the district court was required to
follow an incremental approach to increase his sentence based on
criminal history also fails. While the Guidelines require that
a district court use an incremental approach to imposing a
departure sentence based on a underrepresentation of criminal
history when the defendant is already in category VI, United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (citing
U.S.S.G. § 4A1.3(a)(4)(B)), we have never extended that
requirement to a variance sentence. Here, the court clearly
imposed a variance sentence, and thus was not obligated to
follow the approach mandated for departure sentences. See
Irizarry v. United States, 553 U.S. 708, ___, 128 S. Ct. 2198
(2008) (noting differences between departure sentences and
variance sentences and holding the Guidelines notice
requirements for departure sentences do not apply to variance
sentences).
10
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.
Id. at 328. In Carter, we concluded the district court failed
to “justify Carter’s sentence with an individualized rationale.”
Id. at 328-29. The problem in Carter was that the district
court failed to explain how the § 3553(a) factors “applied to
Carter,” and that its “asserted ‘reasons’ could apply to any
sentence, regardless of the offense, the defendant’s personal
background, or the defendant’s criminal history.” Id. at 329.
In contrast, the district court in the case at bar
identified and expounded upon specific reasons that it felt an
above-Guidelines sentence was appropriate for Ohin. It cited
the victim of Count I’s extensive injuries and hospitalization,
as well as her ongoing mental and psychological problems. It
also noted that it did not find Ohin’s drug use “alone” to be a
mitigating factor because the crime and victim “had nothing to
do with the drug culture and was in no way involved in it.”
(J.A. 81.) Lastly, the court relied on Ohin’s “troubling”
criminal history, which gave it “little reason to believe that
[Ohin] will be a law-abiding citizen upon his release from
confinement.” (J.A. 81.) These statements were specific to
11
Ohin’s background and the nature of the offenses for which he
had been convicted. A lengthier exposition is not necessary
especially where, as here, the relevant facts are undisputed and
their connection to an above-Guidelines sentence readily
apparent. E.g., Gall 552 U.S. at 50; United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010). The court’s statements satisfy
us that it “ha[d] considered the parties’ arguments and ha[d] a
reasoned basis for exercising [its] own legal decisionmaking
authority” in light of § 3553(a). Carter, 564 F.3d at 328.
Accordingly, there is no basis for vacating the sentence and
requiring additional exposition.
III.
For the aforementioned reasons, we affirm the district
court’s judgment.
AFFIRMED
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