UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4516
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMUEL LEE HORTON, II,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-01311-HMH-1)
Argued: September 18, 2012 Decided: November 19, 2012
Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Bruce Betts, Columbia, South Carolina, for
Appellant. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Lee Horton, II appeals his sentence for making a
false statement in a passport application in violation of 18
U.S.C. § 1542. Specifically, Horton challenges the district
court’s decision to vary from the guidelines and impose a 120-
month prison sentence, the statutory maximum for the offense.
We affirm.
I.
A.
Horton and his wife divorced in February 2009. The divorce
decree granted his wife custody of their two minor children and
Horton visitation rights. The same day the divorce became
final, Horton falsified his wife’s signature on a passport
application for the purpose of obtaining a passport for his
daughter. In April 2009, Horton picked up his then three-year-
old daughter for what he told his ex-wife would be a nine-day
trip to Disney World in Florida. Instead, he took her to
Thailand, arriving on April 9, 2009. Law enforcement officials
located and apprehended Horton in June 2010, fourteen months
later, and returned him and his daughter to the United States.
B.
Horton pleaded guilty to a single-count indictment charging
him with making a false statement in a passport application in
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violation of 18 U.S.C. § 1542. Horton’s presentence report
(“PSR”) determined that the sentencing guideline for passport
fraud, U.S.S.G. § 2L2.2, required a cross-reference to the
guideline applicable to International Parental Kidnapping,
U.S.S.G. § 2J1.2. The cross-reference resulted in a higher base
offense level and the PSR calculated a total offense level of 16
that, combined with Horton’s category II criminal history,
resulted in an advisory guideline range of twenty-four to thirty
months’ imprisonment. The statutory maximum prison sentence for
violation of the international parental kidnapping statute, 18
U.S.C. § 1204, was thirty-six months. The statutory maximum
sentence for making a false statement in a passport application,
the charge to which Horton pleaded guilty, was 120 months.
Neither party objected to the PSR.
At Horton’s sentencing hearing, the government moved for a
variance or departure above the top of the advisory guideline
range. The district court granted the motion because the
“guidelines just do not fit . . . what has occurred here.”
(J.A. 47.) In particular, the district court relied on the
following circumstances: (1) Horton fled with his daughter and
made no contact with his ex-wife for several weeks, causing the
child’s family to wonder whether she was even alive, (2) he
relocated the child to Thailand, on the other side of the world,
for fourteen months and had no intention of reuniting her with
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her family, (3) he taunted his ex-wife by email, (4) he locked
the child in her bedroom so that she would not escape, (5) he
and a male companion sexually victimized the child, (6) the
child was reunited with her family only due to a prolonged,
diligent law enforcement campaign to locate her and apprehend
Horton, and (7) expert testimony established that she would
suffer lifelong trauma and need prolonged counseling. In
addition, the district court considered Horton’s contempt for
the law (evidenced by his frequent criminal violations and
violations of orders issued by the family court), his likelihood
of further victimizing his daughter and her family, and the need
to promote deterrence for this type of crime. The court
sentenced Horton to the statutory maximum of 120 months in
prison, four times the high end of his applicable guideline
range. This appeal followed.
II.
Horton contends that the district court failed to provide a
sufficient justification for its substantial upward variance
from the guideline range. He argues that the reasons relied on
by the district court for imposing the 120-month prison sentence
primarily involve conduct related to international parental
kidnapping, a crime which carries a statutory maximum sentence
of thirty-six months. Thus, in Horton’s view, the district
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court erred in arriving at a sentence that “is more than three
times the statutory maximum he would have faced for parental
kidnapping.” Appellant’s Br. at 7.
We review the district court's sentence for reasonableness
under a “deferential abuse-of-discretion standard.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation omitted). “In assessing whether a sentencing court
has properly applied the Guidelines, we review factual findings
for clear error and legal conclusions de novo.” United States
v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).
An out-of-guidelines sentence must be reviewed for both
procedural and substantive reasonableness. Gall v. United
States, 552 U.S. 38, 51 (2007). “A sentence may be procedurally
unreasonable, for example, if the district court provides an
inadequate statement of reasons or fails to make a necessary
factual finding.” United States v. Moreland, 437 F.3d 424, 434
(4th Cir. 2006), overruled on other grounds by Gall, 552 U.S.
38. On the other hand, “[a] sentence may be substantively
unreasonable if the court relies on an improper [sentencing]
factor or rejects policies articulated by Congress or the
Sentencing Commission.” Id.
Our review of Horton’s sentence should “take into account
the totality of the circumstances” in determining whether the
district court’s justification for imposing an out-of-guidelines
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sentence is “sufficiently compelling to support the degree of
the variance.” Gall, 552 U.S. at 50-51. “[C]ommon sense
dictates that a major departure should be supported by a more
significant justification than a minor one.” United States v.
Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008) (internal quotation
marks omitted).
We conclude that the district court did not abuse its
discretion in imposing the statutory maximum sentence. The
extraordinary facts found by the district court, summarized
above, support a sentence significantly in excess of the
advisory guideline range. Horton’s contention that his sentence
would have been capped at thirty-six months had the government
charged him with international parental kidnapping is beside the
point. A defendant may be charged and sentenced under the more
punitive of two or more statutes that the defendant has
violated. See United States v. Batchelder, 442 U.S. 114, 125
(1979). And in establishing a 120-month maximum sentence for
passport fraud, Congress clearly contemplated that the
circumstances of certain cases would be such that the offender
deserves to be punished up to the maximum term. We agree with
the district court that this is such a case. Congress’s policy
choice in setting the respective statutory maximum sentences for
the offenses at issue here, which it is not our place to
question, also serves to dispose of Horton’s argument that a
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sentence above the statutory maximum for international parental
kidnapping creates an unwarranted sentencing disparity under 18
U.S.C. § 3553(a)(6). *
III.
We affirm the judgment of the district court.
AFFIRMED
*
Horton also argues that the district court’s sentence
should not have been influenced by the fact that Horton was not
going to face state criminal charges. In our view, however, any
error was harmless given the other good and substantial reasons
supporting the district court’s sentence.
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