UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4814
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT SUMPTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:05-cr-00246-FL)
Submitted: June 17, 2009 Decided: April 7, 2011
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, William M. Gilmore, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Sumpter appeals his sentence on a conviction,
following a jury trial, to aiding and abetting and conspiracy to
unlawfully obstruct, delay and affect commerce by robbery, in
violation of 18 U.S.C. § 1951 (2006) (Count One), 1 and on a
guilty plea to unlawfully obstructing, delaying, and affecting
commerce by robbing Friedman’s, and aiding and abetting, in
violation of 18 U.S.C. §§ 1951, 2 (2006) (Count Six);
brandishing firearms in furtherance of a crime of violence, the
Friedman’s robbery, and aiding and abetting, in violation of 18
U.S.C. §§ 924(c), 2 (2006) (Count Seven); possession of firearms
after having previously had been convicted of a felony and
aiding and abetting, in violation of 18 U.S.C. §§ 922(g)(1),
924, 2 (2006) (Count Eight). 2 Following two sentencing hearings,
during which Sumpter’s objections to the Presentence
Investigation Report (“PSR”) were fully argued and considered,
1
In furtherance of this conspiracy, the Grand Jury alleged
three overt acts: First, that Sumpter and one other person on
April 22, 2005, robbed the Perry Brothers jewelry store in
Raleigh, North Carolina (“Perry Brothers”), at gunpoint; second
that Sumpter and others on April 29, 2005, robbed the Ora
jewelry store in Raleigh, North Carolina (“Ora”), at gunpoint;
and third that Sumpter and others on June 8, 2005, robbed the
Friedman’s jewelry store in Dunn, North Carolina (“Friedman’s”),
at gunpoint.
2
The jury found Sumpter not guilty of Counts Two through
Five of the indictment, which charged Hobbs Act and firearms
violations relative to the Perry Brothers and Ora robberies.
2
the district court determined Sumpter qualified as both a career
criminal and an armed career offender, and sentenced him to a
total of 584 months’ imprisonment (240 months concurrently on
Counts One and Six, 500 months on Count Eight concurrent with
Counts One and Six, and 84 months on Count Seven consecutively
to Counts One, Six, and Eight), five years of supervised release
(three years each on Counts One and Six concurrently with five
years each on Counts Seven and Eight), and ordered payment of
the statutory special assessment of $400, restitution in the
amount of $5,424.39 jointly and severally with all codefendants,
and a fine in the amount of $250,000.
On appeal, Sumpter (1) challenges the district
court’s denial of a two-level reduction in his offense level for
acceptance of responsibility, pursuant to U.S. Sentencing
Guidelines Manual § 3E1.1, (2) claims the district court’s
explanation of its reasons for the sentence were inadequate, and
(3) claims the district court erred in failing to make findings
concerning his ability to pay prior to imposing the $250,000
fine. We affirm Sumpter’s conviction, vacate his sentence and
remand for resentencing.
Sumpter first challenges the district court’s refusal
to grant him a two-level reduction of his offense level for
acceptance of responsibility. He claims that, because the form
of the indictment was such that all three robberies were
3
included as objects in the single conspiracy charge of Count
One, he was forced to go to trial on that charge because,
despite his admitted involvement in the Friedman’s robbery, he
was not guilty of participating in either the Perry Brothers or
Ora robberies. He asserts that had he pled guilty to Count One,
he would necessarily be admitting to participating in the other
two robberies even though he did not so participate, and would
have exposed himself to sentencing based on conduct of all three
robberies, pursuant to USSG § 1B1.2(d). He claims that, under
those unique circumstances, the district court should have
granted him an acceptance of responsibility reduction despite
the fact he went to trial.
This court reviews a district court’s decision to deny
an adjustment for acceptance of responsibility for clear error.
United States v. Pauley, 289 F.3d 254, 261 (4th Cir. 2002).
Pursuant to USSG § 3E1.1, a reduction for acceptance of
responsibility is appropriate “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense. . .”
and “is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then
admits guilt. . . .” USSG § 3E1.1, App. n.2.
Here, prior to trial, at the time Sumpter pled guilty
to the Friedman’s robbery, the Government’s factual proffer set
4
forth all the essential factual elements necessary to convict
him of the conspiracy charged in Count One, which count
expressly listed the Friedman’s robbery as an overt act in the
conspiracy. Accordingly, in light of his plea to the Friedman’s
robbery, Sumpter knew or should have known that a reasonable
jury would have found him guilty of Count One. As the district
court noted, that he sought to put the Government to its burden
on Count One as a trial tactic hoping the jury would not convict
him of conspiracy in the Friedman’s robbery because he was not
guilty of the other two robberies, does not support an
acceptance of responsibility reduction. Moreover, while Sumpter
did not dispute his guilt on the commission of the Friedman’s
robbery, he never admitted his guilt in the conspiracy to commit
the Friedman’s robbery, and thus did not fully accept
responsibility for all his actions relative to the Friedman’s
robbery. The record reveals that the district court carefully
considered all the relevant facts and issues relating to
Sumpter’s request for an acceptance of responsibility reduction,
including whether Sumpter accepted responsibility for all the
actions of, and relating to, the Friedman’s robbery. Under
these circumstances, we find no clear error in the district
court’s decision not to award Sumpter an acceptance of
responsibility reduction.
5
Sumpter next argues that the district court failed to
adequately explain the term of imprisonment it imposed, contrary
to the requirements of 18 U.S.C. § 3553(c) (2006).
Specifically, he asserts that the reasons given by the district
court for its sentence, i.e., Sumpter’s career offender status,
the 84-month consecutive term for his guilty plea to a § 924(c)
offense, and his violent history, constituted an “unacceptably
sparse rationale” and were redundant because all had been
considered previously by Congress and the Sentencing Commission
in developing the advisory guideline range applicable to
Sumpter’s crime.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness, and “whether inside, just
outside, or significantly outside the Guidelines range,” we
apply a “deferential abuse-of discretion standard.” Gall v.
United States, 552 U.S. 38, 52 (2007). First, we must “ensure
that the district court committed no significant procedural
error.” Id. at 51. Only if the sentence is procedurally
reasonable can we evaluate the substantive reasonableness of the
sentence, again using the abuse of discretion standard of
review. Id.; see also United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009). In our determination of whether the
district court committed any significant procedural error, we
look to any failure in the calculation (or the improper
6
calculation) of the Guidelines range, the treatment of the
Guidelines as mandatory, any failure to consider the § 3553(a)
factors, any selection of a sentence using clearly erroneous
facts, and any failure to adequately explain the chosen sentence
and any deviation from the advisory Guidelines range. Gall, 552
U.S. at 51. The district court “must make an individualized
assessment based on the facts presented” when rendering a
sentence, id., applying the relevant § 3553(a) factors to the
specific circumstances of the case and the defendant, and must
“state in open court” the particular reasons supporting its
chosen sentence. Carter, 564 F.3d at 328; see also 18 U.S.C.
§ 3553(c) (2006). A brief statement of the reasons suffice
under § 3553(c)(1). Rita v. United States, 551 U.S. 338, 356-57
(2007).
We conclude that the reasons stated by the district
court following imposition of its 584-month sentence in this
case were not sufficiently individualized such that we can
conclude that the sentencing court considered Sumpter “as an
individual and [his] case as a unique study in the human
failings that sometimes mitigate, sometimes magnify, the crime
and the punishment to ensue.” Gall, 552 U.S. at 52 (internal
quotation marks omitted); Carter, 564 F.3d at 328. As we stated
in United States v. Lynn, 592 F.3d 572, 584 (4th Cir. 2010), “a
district court’s explanation of its sentence need not be
7
lengthy, but the court must offer some ‘individualized
assessment’ justifying the sentence imposed and rejection of
arguments for a higher or lower sentence based on § 3553.” We
express no view of course on the substantive reasonableness of
the sentence imposed.
The final issue Sumpter raises on appeal is a
challenge to the $250,000 fine imposed, on the basis that the
district court failed to consider the congressionally-mandated
factors set forth in 18 U.S.C. § 3572 (2006), as to his ability
to pay. The Government agrees that the sentencing court’s
failure to make findings concerning Sumpter’s ability to pay a
fine prior to ordering payment of the fine constitutes
reversible error.
This court reviews a district court’s factual findings
with respect to the imposition of a fine under the “clearly
erroneous” standard of review. United States v. Aramony, 166
F.3d 655, 665 (4th Cir. 1999). Pursuant to 18 U.S.C. § 3572(a),
the district court, prior to imposing a fine, must consider the
defendant’s income, financial resources, and earning capacity,
as well as the burden a fine would impose on the defendant or on
any person financially dependent on the defendant. The district
court’s findings about a defendant’s ability to pay must be made
expressly. See United States v. Castner, 50 F.3d 1267, 1277
(4th Cir. 1995); United States v. Arnoldt, 947 F.2d 1120, 1127
8
(4th Cir. 1991); United States v. Harvey, 885 F.2d 181, 182-83
(4th Cir. 1989). While the requirement for such findings may be
satisfied by the district court’s adoption of the PSR that
includes adequate factual findings to allow effective appellate
review of the fine imposed, Castner, 50 F.3d at 1277, in this
case, the probation officer noted that Sumpter had a negative
net worth of $2,719 and no income, and concluded that Sumpter
was, without the ability to pay a fine in addition to court-
imposed restitution.
On these facts, we find plain error in the district
court’s failure to make the required findings relative to
Sumpter’s ability to pay a fine. Accordingly, we affirm
Sumpter’s convictions, vacate his sentence, and remand for
resentencing. In resentencing, we direct the district court to
give specific consideration to Gall and Carter, to make findings
concerning Sumpter’s ability to pay a fine, to modify the fine
if necessary, and to reconcile the installment payment amounts
in the written judgment with the amounts specified during the
oral pronouncement of Sumpter’s sentence. 3
3
The written judgment erroneously states that Sumpter’s
restitution payment while under supervised release is to be
payable in $100 per month installments, while the oral
pronouncement of the district court was that such payments be
made in $50 per month installments.
9
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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
10