UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE MAURICE WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:14-cr-00043-BO-1)
Argued: September 20, 2016 Decided: November 18, 2016
Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part; vacated in part and remanded with instructions
by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Barbara
Dickerson Kocher, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Yvonne V.
Watford-McKinney, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Tyrone Maurice Williams was indicted and pled guilty to
Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (“Count 1”);
using and carrying a firearm during and in relation to and
possessing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) (“Count 2”); possession of
a firearm by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) (“Count 3”); and robbery of a credit union, in
violation of 18 U.S.C. § 2113(a) (“Count 4”). We affirm
Williams’ convictions, vacate his sentence, and remand for
resentencing before a different district judge.
I.
Counts 1 and 2 of the indictment in this case arose out of
Williams’ robbery of a Dollar General store in New Bern, North
Carolina, on July 24, 2012. During the robbery, Williams shot
the store cashier and store manager, inflicting serious physical
injuries upon both men. Williams then forced the injured
cashier to open the safe. He fled with $600 in currency. Count
3 involved an incident occurring in Winterville, North Carolina,
in August 2012. Police officers responding to a noise complaint
found Williams and others loitering around a vehicle. When the
officers approached the group, Williams pulled a handgun from
his waistband and fled on foot. Williams was apprehended and
the gun was recovered. Count 4 arose out of Williams’ armed
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robbery of the First Flight Federal Credit Union in New Bern,
North Carolina, in February 2014. Williams passed a threatening
note demanding money to a teller. The teller put $4,373 in
currency into an envelope and gave it to Williams. Subsequent
to his arrest, Williams confessed to robbing the credit union,
robbing the Dollar General store, and shooting the Dollar
General employees.
Williams pled guilty as charged to all counts without a
plea agreement. Counts 1 and 4 each carried a maximum statutory
term of imprisonment of 20 years, and Count 3 carried a maximum
statutory term of imprisonment of 10 years. The statutory range
for Count 2 was 10 years to life imprisonment.
The presentence report grouped Counts 1, 3 and 4.
Williams’ adjusted offense level for Count 1 was 30, which
included a 10-level increase for infliction of permanent or
life-threatening bodily injury and abduction of a person to
facilitate the commission of an offense. The adjusted offense
levels for Counts 3 and 4, respectively, were 14 and 24. Under
the grouping rules, the highest offense level of 30 was
increased by 1, resulting in a combined adjusted offense level
of 31. A 3-level reduction for acceptance of responsibility
reduced the total offense level to 28. With a criminal history
category of IV, Williams’ advisory Guidelines sentencing range
was 110 to 137 months’ imprisonment. Count 2 required
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imposition of a consecutive sentence and was excluded from the
grouping rules. The advisory Guidelines sentence for Count 2
was the statutory minimum 10-year term of imprisonment. Neither
Williams nor the government objected to the presentence report.
The district court held a sentencing hearing on January 21,
2015. The district court began the hearing by asking Williams
if he “want[ed] to say anything about the punishment [he would]
receive,” to which Williams simply responded, “No, Sir.” J.A.
24. What followed can only be described (at best) as a testy
exchange between the district court and Williams about Williams’
crimes and the district court’s view that Williams was not
remorseful. The district court began by demanding to know why
Williams “tr[ied] to murder” the Dollar General employees. J.A.
24. When Williams stated that he “didn’t try to murder them”
and that “it wo[uld]n’t happen” again, the district court
informed Williams that “[i]t won’t happen because I’m going to
put you in jail forever.” J.A. 25. When Williams acknowledged
that he could not “change what happened,” but did “have the
opportunity to apologize” and “grow from it and become . . . a
better person,” the district court told Williams that there were
“some things you can’t apologize for” and that “[i]n some
societies they would just eliminate you. . . . You won’t have
to worry about getting better, you would be gone.” J.A. 27.
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The district court then heard from the Dollar General
victims about the effect the incident had upon their lives and
the lives of their families. The district court stated that in
more than three decades it had “never heard an allocution as
powerful” as those offered by the victims and that, in contrast,
Williams had been “brazen enough to look at these people whose
lives he has crushed and driven into the ground with virtually
no remorse.” J.A. 41. The district court further stated that
it could not “see any justification for a sentence below the
maximum that the statute and law would permit,” and suggested
that the “appellate courts c[ould] listen to and read the
testimony of the witnesses and the lack of contrition on the
part of the defendant.” J.A. 42.
At the conclusion of the hearing, the district court
imposed a total term of imprisonment of 480 months. On Counts 1
and 4 (the two robbery charges), the district court imposed
concurrent statutory maximum sentences of 240 months. The
district court also imposed the statutory maximum sentence of
120 months for Count 3 (the felon-in-possession charge), but
ordered that it run consecutively to the other counts in the
group. This resulted in a sentence of 360 months on the three
grouped counts. The district court then added the mandatory
minimum sentence of 120 months on Count 2, raising the total
term of imprisonment to 480 months.
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The next day, however, the district court sua sponte gave
notice to the parties of its intent to reopen the sentencing
proceeding, and the court scheduled a hearing for January 27.
At the inception of the hearing, the district court sought
agreement from the government and Williams’ counsel that it had
the power to reopen the sentencing proceeding and change
Williams’ sentence. Both agreed that it did.
After “incorporat[ing] by reference everything that was
said including the allocution participation at the last
hearing,” the district court stated that, “after thinking about
how [it] imposed [the 480-month] sentence[,] [it] want[ed] to go
back and remove that and consider a different approach to it.”
J.A. 51. The district court, upon “reflection,” then imposed a
total prison term of 360 months. J.A. 52. For grouped Counts
1, 3, and 4, the district court imposed a within-guidelines
sentence of 120 months. For Count 2, the district court varied
upward and imposed a consecutive sentence of 240 months (double
the mandatory minimum and well below the statutory maximum of
life imprisonment).
The district court explained its reconsideration of the
480-month sentence. First, the district court judge advised
that he had been under the mistaken impression at the initial
sentencing hearing that the maximum sentence that he could
impose for Count 2 was 10 years’ imprisonment. Second, the
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district court judge observed that “under the guidelines and
under sentencing law and taking 3553(a) into account,” Count 2
was “the place where I should [have] upwardly depart[ed],” J.A.
52, because “the use of the firearm [was] the salient object in
this case that caused all the damage,” J.A. 54. Finally, the
district court explained that “[i]n the fast moving way in which
the hearing went dominated by the allocution there wasn’t enough
time to think about what an appropriate upward departure would
be. And I believe after reflection this is what I should do.”
J.A. 53.
On appeal, Williams challenged his convictions on Counts 1
and 2, and his 360-month sentence as substantively unreasonable.
The government did not appeal. We directed the parties to file
supplemental briefs addressing the question of whether the
district court had jurisdiction to reopen the sentencing
proceeding and reduce Williams’ sentence to 360 months. We also
requested the parties to supplement their briefs to address the
question of whether the 480-month sentence imposed by the
district court was substantively reasonable.
II.
Williams challenges his convictions on Counts 1 and 2 on
the basis that the Hobbs Act is unconstitutional under the
Commerce Clause of the United States Constitution. As Williams
acknowledges, this argument is foreclosed by precedent. See
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United States v. Williams, 342 F.3d 350, 354 (4th Cir. 2003).
Accordingly, we affirm his convictions.
III.
With regard to Williams’ sentence, we conclude that the
district court lacked jurisdiction to modify Williams’ sentence
from 480 months to 360 months, and thus it is the 480-month
sentence that we review. Because we hold that the 480-month
sentence was unreasonable, we vacate that sentence and remand
for resentencing.
A.
Rule 35(a) of the Federal Rules of Criminal Procedure–the
provision upon which Williams relies to support the district
court’s jurisdiction-provides that “[w]ithin 14 days after
sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error.” Fed. R. Crim.
P. 35(a). “‘[S]entencing’ means the oral announcement of the
sentence.” Fed. R. Crim. P. 35(c); United States v. Layman, 116
F.3d 105, 108 (4th Cir. 1997). The district court’s authority
to modify a sentence under Rule 35(a) is “severely limited.”
Id. “The rule ‘is not intended to afford the opportunity to
reconsider the application or interpretation of the sentencing
guidelines or for the court simply to change its mind about the
appropriateness of the sentence.’” Id. (quoting Fed. R. Crim.
P. 35, Advisory Committee Notes on 1991 Amendments); see also
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United States v. Fields, 552 F.3d 401, 405 (4th Cir. 2009)
(“Congress limited the reach of Rule 35(a) because it wanted to
promote openness and finality in sentencing.”).
Here, the district court orally announced Williams’ prison
sentence on January 21, 2015, and resentenced Williams six days
later because the court, “upon reflection,” changed its mind
about the ground for the upward departure and the appropriate
extent of the departure. J.A. 52. The district court lacked
the power to do so. See Fields, 552 F.3d at 404-05; Layman, 116
F.3d at 108. Because the 360-month sentence was issued without
jurisdiction, we therefore deem it to be of no effect and not
subject to appellate review. The operative sentence for our
review is the 480-month sentence imposed on January 21, 2015.
B.
Williams contends that the district court abused its
discretion in imposing the 480-month sentence. We agree.
Under 18 U.S.C. § 3553(a), district courts must consider
“the nature and circumstances of the offense and the history and
characteristics of the defendant,” and “impose a sentence
sufficient, but not greater than necessary, to comply with” the
statutory purposes of sentencing. Those purposes include “the
need for the sentence imposed . . . (A) to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; (B) to afford
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adequate deterrence to criminal conduct; (C) to protect the
public from further crimes of the defendant; and (D) to provide
the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most
effective manner.” 18 U.S.C. § 3553(a)(2)(A)-(D).
Generally speaking, the district court must begin the
sentencing process with a correct calculation of the applicable
Guidelines range. See Gall v. United States, 552 U.S. 38, 49
(2007). “[T]he district court should then consider all of the §
3553(a) factors to determine whether they support [a particular]
sentence.” Id. at 49-50. “After settling on the appropriate
sentence, [the district court] must adequately explain the
chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Id. at 50. “The
farther the court diverges from the advisory guideline range,
the more compelling the reasons for the divergence must be.”
United States v. Hampton, 441 F.3d 284, 288 (4th Cir. 2006)
(internal quotation marks omitted).
When reviewing the substantive reasonableness of a
sentence, we “examine the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Gomez–Jimenez, 750 F.3d 370, 383
(4th Cir. 2014) (internal quotation marks and alteration
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omitted). And where, as here, the sentencing court has imposed
a sentence that varies upward from the advisory Guidelines
sentence, we must determine “whether the sentencing court acted
reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from
the sentencing range.” United States v. Washington, 743 F.3d
938, 944 (4th Cir. 2014) (internal quotation marks omitted);
Gall, 552 U.S. at 50. We “must give due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” United States v.
Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007) (internal quotation
marks omitted). “This deference is due in part because the
sentencing judge is in a superior position to find facts and
judge their import and the judge sees and hears the evidence,
makes credibility determinations, has full knowledge of the
facts and gains insights not conveyed by the record.” United
States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011)
(internal quotation marks and alterations omitted).
No one can doubt the breadth and severity of Williams’
crimes. And we cannot say at this juncture that a district
court’s decision to vary from the advisory Guidelines sentence
in some way and in some measure could not be justified by the §
3553(a) factors. However, it is our duty to consider the
totality of the circumstances that led to the district court’s
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decision to impose a specific variant sentence, along with the
reasoned basis articulated by the district court for its
decision. Having taken these things into consideration, we must
conclude that the district court abused its discretion.
First, the extent of the variance was significant. The
Guidelines sentencing range for grouped Counts 1, 3, and 4 was
110-137 months’ imprisonment. Although it would not alone
render the sentence unreasonable, we note that the adjusted
offense level for Count 1, which carried the highest adjusted
offense level for the group, had already taken into account the
fact that Williams inflicted serious bodily injury upon the
Dollar General victims. By imposing the statutory maximum
sentences on Counts 1 and 4, removing Count 3 from the group,
and imposing a consecutive instead of concurrent statutory
maximum sentence on Count 3, the district court imposed a total
sentence (360 months) for the grouped counts that was more than
2 1/2 times the top of the advisory range, before adding the
mandatory minimum 10-year term on Count 2. The end result was a
40-year sentence that was more than 18 1/2 years above the
maximum advisory Guidelines sentence for all offenses.
Second, while we would normally be required to give due
deference to a district court’s application of the § 3553(a)
factors and its concomitant determination that the variant
sentence imposed was sufficient, but not greater than necessary,
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to comply with the purposes set forth in § 3553(a), such
deference is largely unwarranted under the unusual circumstances
of this case. Here, the district court’s determination, while
ostensibly grounded in the § 3553(a) factors, was clearly
affected by other matters. The record of the sentencing
proceeding clearly conveys an unusually high degree of emotion,
no doubt ignited by the district court’s displeasure with
Williams’ decision not to allocute, and then fueled by the
allocutions that were offered by the Dollar General victims.
And contrary to the district court’s belief at the time, our
reading of the record does not automatically cause us to reject
Williams’ professed remorse for his actions. As the district
court would later admit, the sentencing hearing was at least in
some measure tainted by “the fast moving way in which the
hearing went[,] dominated by the allocution,” so as not to allow
“enough time to think about what an appropriate upward departure
would be,” J.A. 53, and by its misinterpretation of the
presentence report and failure to understand that it could have
varied on the count that most troubled the court – Williams’ use
of the firearm to shoot the victims. Although the district
court’s change of heart alone does not suffice to establish the
unreasonableness of the sentence, the events that occurred
during the “resentencing” hearing do confirm our concerns about
the sentence that was imposed at the first sentencing hearing.
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To conclude, we are unable to say on the existing record
that the district court “acted reasonably both with respect to
its decision to impose [the variant] sentence and with respect
to the extent of the divergence from the sentencing range.”
Washington, 743 F.3d at 944 (internal quotation marks omitted).
Nor would our doing so in these circumstances “promote the
perception of fair sentencing.” Gall, 552 U.S. at 50.
“Inherent in the concept of reasonableness is the notion that
the rare sentence may be unreasonable, and inherent in the idea
of discretion is the notion that it may, on infrequent occasion,
be abused.” United States v. Howard, 773 F.3d 519, 536 (4th
Cir. 2014) (internal quotation marks omitted). “This case
presents an example of that rare sentence presented to us on
those infrequent occasions.” Id. Accordingly, we vacate the
480-month sentence imposed by the district court as
substantively unreasonable. In light of the circumstances, we
also think a fresh start is in order. Accordingly, we will
remand the case to a different district judge for resentencing.
IV.
For the foregoing reasons, we affirm Williams’ convictions,
vacate his sentence as unreasonable, and remand for resentencing
before a different district judge.
AFFIRMED IN PART; VACATED IN PART
AND REMANDED WITH INSTRUCTIONS
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