UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4847
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERMAN GODWIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00350-FL-1)
Submitted: November 30, 2010 Decided: December 28, 2010
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Anne 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Unpublished opinions are not binding precedent in this circuit.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:
Sherman Jermarr Godwin pled guilty to unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced to a term of seventy-one
months imprisonment, a variance above the advisory guideline
range. Godwin appeals his sentence, arguing that the district
court committed significant procedural error by failing to
consider an upward departure before imposing a variance sentence
above the guideline range under 18 U.S.C. § 3553(a) (2006). For
the reasons explained below, we vacate the sentence and remand
for resentencing.
The presentence report did not identify any factor
that might warrant a sentence outside the guideline range of 37-
46 months and, at sentencing, both parties requested a sentence
within the range. However, the district court decided to impose
a variance sentence above the range for reasons that focused
heavily on Godwin’s criminal record and the lenient treatment he
had previously received. After the sentence was imposed,
Godwin’s attorney stated that the sentence amounted to a
departure. The district court disagreed, explaining that it had
considered the guidelines and the § 3553(a) sentencing factors,
but that Godwin’s record and the need to protect the public
required a sentence above the guideline range. Defense counsel
immediately lodged an objection.
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We review a sentence, “whether inside, just outside,
or significantly outside the Guidelines range,” under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, we
must first ensure “that the district court committed no
significant procedural error, 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[.]” Id. at
51. If the sentence is free from procedural error, this court
then reviews it for substantive reasonableness. Id. Because
Godwin objected in the district court to the above-guideline
sentence, he has preserved the issue for appeal. United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). Thus, if a
procedural error occurred, reversal may be appropriate unless
the error was harmless. Id.
Godwin relies on published authority from this court
which states that, before varying from the guideline range, the
sentencing court must first determine whether a departure is
warranted under the guidelines and, if so, vary only if the
departure is inadequate to achieve a reasonable sentence. See
United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006);
see also United States v. Fancher, 513 F.3d 424, 427 n.1 (4th
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Cir.) (citing Moreland), abrogated in part by Irizarry v. United
States, 553 U.S. 708 (2008) (holding that variance does not
require prior notice). He acknowledges that a later argued but
unpublished Fourth Circuit case suggests that this process may
not be necessary after Gall, citing United States v. Hawes, 309
F. App’x 726, 732 n.2 (4th Cir. 2009).
The government, also citing Hawes, argues that the
procedure set out in Moreland is no longer necessary because it
is inconsistent with Gall. Principally, the government relies
on United States v. Evans, 526 F.3d 155 (4th Cir.), cert.
denied, 129 S. Ct. 476 (2008), which held that a sentence above
the guideline range may be based on either the guidelines
“departure provisions” or “on other factors.” Id. at 164.
Evans is distinguishable because the district court in Evans
found a sentence above the range justified both as a departure
(under several guideline departure provisions) and a variance
under § 3553(a).
Although in this case the district court focused on
Godwin’s prior crimes and lenient treatment in the state courts
as the primary basis for the variance, the court did not
consider whether a departure under U.S. Sentencing Guidelines
Manual § 4A1.3, p.s. (2008), would have been sufficient to
achieve a reasonable sentence. Because the court did not
consider a departure, it avoided having to either give advance
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notice to Godwin or continue the hearing so that he could be
prepared to contest a departure. See Irizarry, 128 S. Ct. at
2203. The court also avoided having to follow the incremental
departure procedure required under United States v. Cash, 983
F.2d 558, 561 (4th Cir. 1992). To this extent, Godwin was
prejudiced by the court’s failure to consider a departure.
Because Moreland requires the district court to consider a
departure before it considers a variance, the court’s failure to
do so constituted a significant procedural error. The
government has not shown that the error was harmless.
We therefore vacate the sentence imposed by the
district court and remand for resentencing. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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