UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEWARD EUGENE WHITEHEAD, JR., a/k/a Geno,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:15-cr-00020-GMG-RWT-27)
Submitted: August 3, 2016 Decided: September 14, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Craig P. Erhard, LAW OFFICES OF CRAIG P. ERHARD, PLLC, Fairmont,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Anna Z. Krasinski, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steward Eugene Whitehead, Jr., pleaded guilty in September
2015 to one count of using of a telephone to facilitate the
distribution of heroin, in violation of 21 U.S.C. § 843(b), and
one count of aiding and abetting interstate travel in aid of
racketeering, in contravention of 18 U.S.C. §§ 2, 1952(a)(3). In
December 2015, the district court sentenced Whitehead to thirty
months in prison on each count and directed that those terms run
consecutively. On appeal, Whitehead challenges his sentence as
procedurally and substantively unreasonable. We vacate and remand
for resentencing.
I.
On May 15, 2015, the grand jury in Martinsburg, West Virginia,
returned a 163-count indictment against forty-one defendants,
including Whitehead, alleging a heroin distribution conspiracy and
related offenses. Whitehead was named in seven counts of the
indictment, including one count of conspiracy to distribute and
possess heroin, three counts of use of a telephone to facilitate
the distribution of heroin, one count of interstate travel in aid
of racketeering, and two counts of aiding and abetting interstate
travel in aid of racketeering. In September 2015, pursuant to a
plea agreement, Whitehead entered a plea of guilty to one count of
use of a telephone to facilitate the distribution of heroin (Count
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149) and one count of aiding and abetting interstate travel in aid
of racketeering (Count 150).
On October 7, 2015, the probation officer prepared and
submitted a presentence investigation report (the “PSR”), which
recommended a total offense level of 12, a criminal history
category of VI, and a corresponding guideline range of 30 to 37
months of imprisonment. 1 The PSR recommended that, pursuant to
section 5G1.2(c) of the Sentencing Guidelines, “the sentences on
all counts of conviction shall run concurrently.” See J.A. 248.2
Neither Whitehead nor the government objected to the PSR.
At Whitehead’s December 5, 2015 sentencing, the district
court adopted the PSR without change. Consistent with the plea
agreement, the government recommended that Whitehead be sentenced
to thirty months of imprisonment, the bottom of his advisory
Guidelines range. The court proceeded to sentence Whitehead to
thirty months of imprisonment on each count, to be served
consecutively, for a total of sixty months. In explaining its
sentence, the court observed that Whitehead’s “criminal history
reveals an uninterrupted pattern of illegal activity that was
1 In calculating Whitehead’s recommended sentencing range,
the PSR used the 2015 edition of the Guidelines, which the district
court relied on in sentencing him.
2 Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
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fueled by substance abuse problems,” and that he committed the
offenses of conviction while on probation. See J.A. 204. The
court further declared that Whitehead’s sentence “reflects the
serious nature of the offense, and hopefully will deter the
defendant from future criminal activity once he is released from
incarceration.” Id. Pursuant to the government’s motion, the
court dismissed the remaining five counts of the indictment as to
Whitehead.
In its Statement of Reasons completed in connection with the
sentencing, the district court indicated that it had adopted the
PSR without change and that Whitehead’s advisory Guidelines range
was 30 to 37 months. The court, however, also checked a box
indicating that “[t]he sentence is within the guideline range and
the difference between the maximum and minimum of the guideline
range does not exceed 24 months.” See J.A. 258.
On December 15, 2015, Whitehead noted this appeal from the
district court’s judgment. We possess jurisdiction pursuant to 18
U.S.C. § 3742 and 28 U.S.C. § 1291. 3
3 Whitehead’s plea agreement contains a waiver of his right
to appeal his conviction or sentence “on any ground whatsoever.”
See J.A. 254. The government, however, has expressly agreed not
to seek enforcement of that waiver with respect “to the limited
issue of whether the district court erred in imposing the terms of
imprisonment on counts 149 and 150 to run consecutively.” See Br.
of Appellee 4 n.1.
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II.
We review for reasonableness a sentence imposed by a district
court. See Gall v. United States, 552 U.S. 38, 46 (2007). In
undertaking such a review, “we must first ensure that the district
court committed no significant procedural error.” See United
States v. Diosdado–Star, 630 F.3d 359, 363 (4th Cir. 2011)
(alterations and internal quotation marks omitted). A sentence is
procedurally unreasonable “if the court flatly omits certain
steps, or if it analyzes relevant considerations in a manner
contrary to fact or law.” See United States v. Medina-Campo, 714
F.3d 232, 234 (4th Cir. 2013). Once we determine that a sentence
is procedurally reasonable, we “consider the substantive
reasonableness of the sentence imposed under an abuse-of-
discretion standard.” See United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009) (internal quotation marks omitted).
III.
On appeal, Whitehead challenges the district court’s
imposition of consecutive, rather than concurrent, thirty-month
sentences on a host of procedural and substantive grounds. His
most substantial contention is that the court committed procedural
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error by imposing consecutive sentences without considering that
the Sentencing Guidelines recommended concurrent sentences. 4
Guidelines section 5G1.2 outlines the procedure for
sentencing a defendant who is convicted in federal court of
multiple criminal counts. If none of the counts of conviction
carries a statutory mandatory minimum sentence, “the court shall
determine the total punishment and shall impose that total
punishment on each such count, except to the extent otherwise
required by law.” See USSG § 5G1.2(b). If the total punishment
is less than or equal to the statutory maximum sentence for at
least one count of conviction, then “the sentences on all counts
shall run concurrently, except to the extent otherwise required by
law.” Id. § 5G1.2(c). If, however, the total punishment exceeds
the statutory maximum sentence on each count of conviction, the
court “shall” impose consecutive sentences, “but only to the extent
necessary to produce a combined sentence equal to the total
punishment.” Id. § 5G1.2(d).
The Guidelines, of course, are merely advisory and are not
binding on district courts. See United States v. Booker, 543 U.S.
4 Although the government maintains that several of
Whitehead’s contentions are subject to review for plain error only,
it recognizes that he adequately preserved his contention that the
district court erred in failing to consider that the Guidelines
recommended concurrent sentences. See Br. of Appellee 15
(acknowledging that “the Court may review the purported
[procedural] error for harmlessness”).
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220, 245 (2005). Nevertheless, they provide “the essential
framework” for sentencing proceedings and “anchor the district
court’s discretion.” See Molina-Martinez v. United States, 136 S.
Ct. 1338, 1345 (2016) (alterations and internal quotation marks
omitted). Thus, a sentencing court “must correctly determine
whether the Guidelines recommend concurrent sentences,” and the
“[f]ailure to do so results in procedural error.” See United
States v. Nania, 724 F.3d 824, 830 (7th Cir. 2013).
As the government acknowledges, the district court “did not
. . . address that § 5G1.2(c) of the Guidelines recommends that
. . . Whitehead’s sentences be served concurrently.” See Br. of
Appellee 17. The court’s failure to consider what the Guidelines
recommended constitutes procedural error. The government
contends, however, that the error is harmless, because the court
“would have imposed consecutive sentences regardless of the
Guidelines.” Id. at 19.
When a district court commits procedural error by either
failing to address the Guidelines or by incorrectly applying them,
we will deem such an error harmless when two conditions are met.
First, we must be “certain” that the defendant’s sentence would
have been the same had the court correctly applied the Guidelines.
See United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012).
Second, we must make a “determination that the sentence would be
reasonable even if” the procedural error had not occurred. See
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United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)
(internal quotation marks omitted).
Under these circumstances, we cannot be “certain” that the
district court would have imposed consecutive thirty-month
sentences had it considered the Guidelines’ recommendation of
concurrent sentences. To support its contention to the contrary,
the government relies on the court’s analysis of the sentencing
factors enumerated in 18 U.S.C § 3553(a). As we explained in
United States v. Montes-Flores, however, “something more than a
review by the district court of the § 3553(a) factors is needed”
for us to be “certain” that the defendant’s sentence would have
been the same. See 736 F.3d 357, 370 (4th Cir. 2013).
The government also directs our attention to the district
court’s Statement of Reasons, which characterizes Whitehead’s
sentence as being “within the guideline range.” See J.A. 258. As
the government observes, the Statement of Reasons suggests that
the court “believed it was imposing a within-Guidelines sentence.”
See Br. of Appellee 18. But instead of receiving a sentence within
the advisory Guidelines range of thirty to thirty-seven months,
Whitehead was sentenced to sixty months in prison — twenty-three
months above the top of the advisory Guidelines range.
As the Supreme Court recently explained in Molina-Martinez,
the Guidelines are “most likely to have influenced the district
court’s sentencing decision” in cases “where the court chose a
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sentence within what it believed to be the applicable Guidelines
range.” See 136 S. Ct. at 1347. Thus, an error in calculating
the defendant’s Guidelines range will “in most cases” exceed not
only the threshold of harmlessness, but also the higher “reasonable
probability of prejudice” standard that applies in the context of
plain error review. Id. at 1346. Although Molina-Martinez
involved a different procedural error than the one at issue in
this appeal, as well as a more stringent standard of review, its
reasoning applies with full force here. The fact that the district
court followed the recommendation of the Guidelines with respect
to the term of Whitehead’s sentence raises a reasonable possibility
that the court would have similarly followed the Guidelines’ advice
with respect to whether to impose consecutive or concurrent
sentences. Accordingly, we cannot be certain that, but for the
procedural error in failing to consider Guidelines section 5G1.2,
the court would have imposed the same sentence. 5
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Because we conclude that the district court committed
reversible procedural error in failing to consider that the
Guidelines recommended concurrent sentences, we do not address
whether the imposition of consecutive sentences was substantively
reasonable.
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IV.
For the foregoing reasons, we vacate the judgment of the
district court and remand for resentencing.
VACATED AND REMANDED
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