UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4250
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIANE CONWAY HUTCHISON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00004-MR-DLH-1)
Submitted: October 23, 2013 Decided: November 6, 2013
Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Diane Conway Hutchison appeals the twenty-one month
sentence imposed after she pled guilty to one count of wire
fraud, in violation of 18 U.S.C. § 1343 (2006). The district
court imposed this sentence after departing upward one criminal
history category pursuant to U.S. Sentencing Guidelines Manual
(USSG) § 4A1.3 (2012), based on its conclusion that Hutchison’s
criminal history category of I underrepresented her prior
criminal conduct. Hutchison argues on appeal that the district
court procedurally erred in failing to address her arguments
against the departure and substantively erred in relying on an
inaccurate factual premise to support the departure. We
conclude that Hutchison’s claims are meritorious, and
accordingly vacate her sentence and remand for resentencing.
We review a sentence for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). The same standard
applies whether the sentence is “inside, just outside, or
significantly outside the Guidelines range.” United States v.
Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.) (internal
citation and quotation marks omitted), cert. denied, 133 S. Ct.
274 (2012). In determining procedural reasonableness, we
consider whether the district court properly calculated the
defendant’s advisory Guidelines range, gave the parties an
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opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on
clearly erroneous facts, and sufficiently explained the selected
sentence. Gall, 552 U.S. at 49-51. In reviewing any sentence
outside the Guidelines range, the appellate court must give due
deference to the sentencing court’s decision because it has
“flexibility in fashioning a sentence outside of the Guidelines
range,” and need only “set forth enough to satisfy the appellate
court that it has considered the parties’ arguments and has a
reasoned basis” for its decision. United States v. Diosdado-
Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Gall, 552 U.S.
at 56); see also United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (sentencing court “must make an individualized
assessment based on the facts presented”) (citation and emphasis
omitted).
Hutchison first contends that the district court
failed to comply with the mandate of Gall and United States v.
Lynn, 592 F.3d 572, 581 (4th Cir. 2010), that the sentencing
court address the defendant’s non-frivolous arguments for a
sentence within the Guidelines range. The Government argues
that the sentence is procedurally reasonable and that any error
by the district court was harmless. The district court
recognized that Hutchison’s criminal history was properly
determined in category I because Hutchison’s seven prior
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embezzlement convictions could not be counted separately. USSG
§ 4A1.2(a)(2). Other than noting that category I is the same
category as a defendant with no prior criminal history, the
court’s explanation for its sentence did not address Hutchison’s
arguments against a departure. Nor did the court address those
arguments at any other point in the sentencing proceedings.
Thus, contrary to the Government’s assertions, we conclude that
the court procedurally erred. Further, the error was not
harmless, as there is no indication in the record that the court
would have imposed the same sentence if it had addressed
Hutchison’s arguments.
Hutchison also argues that the court substantively
erred in characterizing her seven prior embezzlement convictions
as providing repeated opportunities for rehabilitation. The
Government argues that this is merely a recharacterization of
the procedural argument asserted by Hutchison, and that the
court acted within its discretion in imposing the sentence. We
conclude that, although Hutchison asserts this is a substantive
error, the district court procedurally erred in its
characterization of Hutchison’s criminal history, specifically
that she “having been given repeated opportunities, simply did
not get the message.” The record reveals that Hutchison was
convicted in 1998 of seven counts of embezzlement arising from
her thefts from an employer over a seven-month period in 1994.
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Hutchison apparently pled guilty and was sentenced for all seven
counts on the same day. Thus, contrary to the district court’s
statement, Hutchison did not have repeated opportunities to
learn from her prior crimes, and the court relied on an
inaccurate factual basis for its departure.
The Government argues that the sentence is reasonable
based on the district court’s reference to the § 3553(a)
factors. The court did not, however, impose a variance
sentence, but a departure sentence. Although the court invoked
certain § 3553(a) factors, nowhere in its explanation did the
court state that, even without the departure, it would have
imposed the same sentence as an upward variance from the
Guidelines range.
We therefore vacate Hutchison’s sentence and remand
for resentencing. * We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this Court and argument would not aid the
decisional process.
VACATED AND REMANDED
*
Having found procedural error, we express no opinion on
the substantive reasonableness of Hutchison’s sentence. On
remand, the district court is free to determine whether a
sentence outside the calculated Guidelines range is appropriate.
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