UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4959
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN DAVID HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00140-FL-1)
Submitted: March 22, 2012 Decided: March 30, 2012
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen David Hill pleaded guilty to possession of a
firearm after sustaining a prior conviction punishable by a term
of imprisonment exceeding one year, in violation of 18 U.S.C. §
922(g)(1) (2006). The district court sentenced Hill to 100
months of imprisonment and he now appeals. Appellate counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning whether the district court erred in upwardly
departing under the advisory Guidelines. Hill was informed of
his right to file a pro se supplemental brief but has not done
so. For the reasons that follow, we affirm Hill’s conviction,
but vacate the portion of the sentence pertaining to a fine, and
remand for resentencing.
Counsel argues on appeal that the district court erred
in upwardly departing under the Guidelines on the ground that
Hill’s criminal history category under-represented the
seriousness of his criminal history. We review a sentence for
reasonableness, applying an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007); see also United States
v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so doing, we
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
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selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51.
When reviewing a departure, we consider “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. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007) (citation omitted). Pursuant to the Guidelines, “[i]f
reliable information indicates that the defendant’s criminal
history category substantially under-represents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes, an upward departure may be
warranted.” U.S. Sentencing Guidelines Manual (“USSG”) §
A1.3(a)(1) (2011). The district court should consider several
factors in making this determination, including whether the
defendant incurred prior sentences that did not count in
calculating the criminal history. USSG § 4A1.3(a)(2)(A). We
have thoroughly reviewed the record and conclude that the
district court did not err in upwardly departing from the
Guidelines range based on Hill’s criminal history.
Although not raised by counsel, however, we find that
the district court plainly erred in imposing a $4000 fine in
this case. As Hill did not object to the imposition of the fine
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in the district court, we review this issue for plain error.
See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). To meet this standard, the record must
confirm that there was error, that was plain, and that affected
Hill’s substantial rights. Id. Moreover, even if plain error
occurred, this court will not exercise discretion to correct the
error “unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted).
Under the Guidelines, a district court must impose a
fine except where the defendant establishes that he is unable to
pay and is not likely to become able to pay a fine. USSG §
5E1.2(A). A district court must consider several factors in
deciding whether to impose a fine, including the defendant’s
income, earning capacity, and financial resources; the burden
that the fine will impose on the defendant or any dependents;
any loss to victims of the offense; whether restitution has been
ordered; the need to deprive the defendant of illegally obtained
gains; and the costs to the government of incarceration. 18
U.S.C. § 3572(a) (2006); see United States v. Castner, 50 F.3d
1267, 1277 (4th Cir. 1995) (discussing factors). We have held
“that the district court must make factual findings with respect
to applicable section 3572 factors, so that there can be a basis
from which to review whether the district court abused its
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discretion in assessing a fine.” United States v. Walker, 39
F.3d 489, 492 (4th Cir. 1994). “A district court may satisfy
these requirements if it adopts a defendant’s presentence
investigation report (PSR) that contains adequate factual
findings to allow effective appellate review of the fine.”
Castner, 50 F.3d at 1277 (citation omitted). “Otherwise, the
district court must set forth specifically its findings of fact
on the factors set forth in 18 U.S.C. § 3572(a).” United States
v. Aramony, 166 F.3d 655, 665 (4th Cir. 1999) (citation
omitted).
While the district court adopted Hill’s PSR, the
factual findings in the report did not support the imposition of
a $4000 fine. The probation officer noted that Hill had limited
education, no history of employment, no assets, resources, or
income, and could only pay a reduced fine of up to $2900 during
imprisonment and after release from incarceration. The district
court failed to address the probation officer’s findings with
respect to Hill's ability to pay a fine and failed to discuss
the § 3572 factors. See United States v. Cox, 2012 WL 11256, *3
(4th Cir. Jan. 4, 2012) (unpublished). We therefore conclude
that the district court erred in imposing the fine without
making the requisite findings. We further conclude that this
error was plain and that it affected Hill’s substantial rights.
Accordingly, we vacate the order imposing a fine and remand for
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proceedings consistent with this opinion.
We have examined the entire record in this case in
accordance with the requirements of Anders and have found no
other meritorious issues for appeal. We therefore affirm Hill’s
conviction, but vacate the sentence as to the order of a fine
and remand to the district court for resentencing. We also deny
counsel’s motion to withdraw. This court requires that counsel
inform Hill, in writing, of the right to petition the Supreme
Court of the United States for further review. If Hill requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Hill. 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 in the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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