United States v. Hawes , 309 F. App'x 726 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4181
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WALTER ROBERT HAWES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:05-cr-00267-PMD)
Argued: October 31, 2008 Decided: January 30, 2009
Before WILKINSON and GREGORY, Circuit Judges, and Martin K.
REIDINGER, United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Reidinger wrote the
opinion, in which Judge Wilkinson and Judge Gregory joined.
ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, South Carolina, for Appellant. Michael
Rhett DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd,
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
REIDINGER, District Judge:
After pleading guilty to the charge of identity fraud in
violation of 18 U.S.C.A. § 1028(a)(7) and (b)(1)(D) (West 2000 &
Supp. 2008), the Defendant Walter Robert Hawes was sentenced to
120 months’ imprisonment. Hawes appeals, arguing that his
sentence is substantively unreasonable. Finding no abuse of
discretion by the district court, we affirm.
I.
In 1995, Hawes was one of four roommates sharing a house in
Charleston, South Carolina. After he abruptly moved out, it was
discovered that Hawes had stolen the Social Security card, birth
certificate, and personal checks of one of his roommates, Robert
Burke, and had cashed those checks, receiving approximately
$2,000.00. It was also discovered that Hawes had stolen
personal checks from another roommate, Gary Elliot, and had
cashed those checks, receiving approximately $1,800.00.
After stealing the personal checks of his roommates, Hawes
fled to North Carolina, where he obtained a driver’s license in
Burke’s name using the stolen birth certificate and Social
Security card. While in North Carolina, Hawes incurred unpaid
medical bills, credit card debt, telephone bills, and cable
bills in Burke’s name. Using Burke’s identity, Hawes married a
woman in North Carolina, fathered a child, and incurred child
2
support obligations. Hawes subsequently abandoned this family
and moved back to South Carolina, where he fathered another
child, still using Burke’s identity. When Hawes defaulted on
his child support obligations in North Carolina, there was an
attempt to garnish Burke’s wages for the child support
obligations incurred by Hawes using Burke’s identity.
Hawes used Burke’s identity for more than a decade, and in
the process, destroyed Burke’s credit record. At the sentencing
hearing, Burke testified that he could never clean up his credit
report because once he corrected it, “new things would pop up
all the time. So it was a never-ending nightmare.” J.A. 45.
Burke and his wife suffered substantial inconvenience and
stress related to repairing his damaged credit record. Burke
testified that collection agencies have been calling him for
over a decade for unpaid bills that Hawes incurred in his name.
Burke testified that for several years, these calls occurred on
a daily basis. Burke stated that collection agencies “aren’t
kind people” and that they did not believe him when he told them
that he was a victim of identity theft. J.A. 45-46. As a
result, he testified, “it was impossible to stop that nightmare
from happening. It was an incessant, over and over, daily
matter that happened for a decade.” J.A. 46.
Burke testified that due to his ruined credit history, he
had to pay 22 percent interest for an automobile loan, far
3
higher than he should have paid given his actual credit history.
He further testified that he had to pay higher interest for
credit cards and that he could not be the primary borrower on
his home mortgage. Burke’s credit history was so damaged that
he was forced to obtain a new Social Security number from the
Social Security Administration.
Using Burke’s identity, Hawes was convicted of at least
three felonies and was incarcerated in state prison. Burke
testified that he was once denied a job because of the criminal
record that Hawes had compiled in his name. Burke further
testified that he lost a job opportunity at another company
which paid $20,000 more per year than his position at the time
because the company’s background check revealed the crimes that
Hawes had committed using Burke’s identity. Burke testified
that this criminal record had “a chilling effect on my career
over the past ten years because I’m afraid to leave jobs.” J.A.
50. Burke testified that he was forced to travel to Raleigh to
get fingerprinted, and state authorities had to compare his
fingerprints to the fingerprints on every arrest record that
Hawes had compiled in his name. Despite Burke’s efforts, his
current job at Bank of America was delayed for more than one
month because of this erroneous criminal record.
In November 2004, the Secret Service located Hawes in
Ladson, South Carolina. Hawes initially identified himself to
4
the Secret Service as Robert Burke, and he provided Burke’s
Social Security card and birth certificate as proof of his
identity. Ultimately, Hawes confessed to stealing Burke’s
identity. He explained that he had assumed Burke’s identity
because he previously had testified for the state in an
attempted murder trial and he was scared. At the conclusion of
the interview, the agents advised Hawes that he would be
indicted and that he would receive a summons to appear for
arraignment.
Following his indictment in March 2005, Hawes absconded.
While a fugitive, Hawes continued to use Burke’s identity,
incurring over $4,000 in unpaid medical bills in Burke’s name.
Hawes committed additional identity theft by stealing the Social
Security card and birth certificate of his employer’s son, Eric
Beltz. Using this stolen information, Hawes obtained a Georgia
driver’s license and incurred more than $5,000 in credit card
debt in Beltz’s name.
In July 2006, Hawes was arrested by state authorities for
the theft of Beltz’s identity. At the time of his arrest, Hawes
was living in Summerville, South Carolina, with his common law
spouse, Angel Sollars. A search of the residence revealed
numerous items procured through fraud, including air
conditioners, clothing, jewelry, tools, and electronic
appliances. In an interview with the Secret Service following
5
his arrest, Hawes stated that he knew he was wanted by law
enforcement, but he fled because he was afraid of going to jail.
During this interview, agents described the harm that his
identity theft had caused Burke. Hawes responded that Burke
“didn’t have a very good life to begin with.” J.A. 62.
II.
On September 13, 2006, Hawes entered his plea of guilty to
the indictment. A Presentence Report (PSR) was prepared, and
based upon a criminal history category of V and an offense level
of 12, the appropriate advisory Guidelines range was calculated
to be 27 to 33 months’ imprisonment. In the PSR, the probation
officer recommended an upward departure from the Guidelines or
an upward variance under 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2008). Hawes did not file objections to any portion of
the PSR.
Arguing that Hawes’ acts of identity theft caused
substantial harm and inconvenience to his victim, the government
moved for an upward departure based upon Application Note 19 of
U.S.S.G. § 2B1.1 (2005). The government also moved for an
upward variance, arguing that the factors set forth in 18 U.S.C.
§ 3553(a) merited a sentence greater than the Guidelines range.
At the sentencing hearing, the district court heard
testimony from two of Hawes’ victims, Robert Burke and Eric
6
Beltz, as well as Secret Service Agent Phil Carter. During his
testimony, Burke provided the district court with a detailed
list of all unpaid credit accounts obtained by Hawes that have
appeared on Burke’s credit reports, as well as a calculation of
the additional interest Burke has had to pay as a result of his
poor credit rating resulting from the identity theft. Burke
estimated that these unpaid bills and additional interest
payments amounted to $18,541.00, although he noted that this
figure did not include the cost he had incurred in investigating
the identity theft. Burke estimated that he has spent
“thousands of hours” trying to repair his credit record. J.A.
46.
Beltz testified that his parents had employed Hawes to
perform work on several rental houses. He testified that Hawes
had gained his parents’ trust over the years, and that they had
provided Hawes and his girlfriend financial assistance and had
showered them with gifts. Beltz testified that Hawes stole his
identity for approximately two months and incurred approximately
$8,000 in credit card debt. Beltz testified that because his
Social Security card is still missing, he has to “keep constant
check on my credit report. And it’s just been a pain. A big
pain.” J.A. 68.
At the sentencing hearing, the district court notified
Hawes that it was “strongly considering” an upward departure
7
and/or variance, and the court continued the hearing to allow
the parties time to brief the issue. J.A. 38. Following the
submission of briefs by both parties, the district court held a
second sentencing hearing. After hearing arguments from
counsel, the district court announced that it found the
government’s motion for an upward departure to be “clearly
warranted” pursuant to Application Note 19 of U.S.S.G. § 2B1.1.
J.A. 94. Specifically, the district court found that Hawes had
caused substantial harm and inconvenience to Burke:
To say that the victim in this case suffered
substantial inconvenience is so understated, it would
almost be laughable. Inconvenience doesn’t begin to
describe what . . . the victim suffered at the hands
of this defendant. Not only was his reputation and
credit not repaired, they were destroyed, so much so
that the victim, Mr. Burke, after years and hours of
harassing telephone calls, trips to Raleigh, North
Carolina, identifying fingerprints to separate himself
from the crimes committed by the defendant, ultimately
[had] to get up and get a new social security number
because he could never, ever repair his credit record.
J.A. 95. The district court further found that Hawes had
committed crimes in Burke’s name, “to such a degree that the
people in the prison system, the lawful authorities dealing with
him, didn’t even known that he was doing so in the victim’s name
and identity.” J.A. 96. Finally, the district court found that
not only had Hawes assumed Burke’s identity, he had, through his
acts of theft, managed to “live[] the victim’s life more fully
than the victim did,” and the court noted that it did not know
8
“of a single case that could be more egregious in that regard
. . . .” Id.
Having concluded that an upward departure was warranted,
the district court found that there was still “a need for an
upward variance in this case, simply because the facts are so
unusual and so aggravating.” J.A. 94. Upon reviewing the
factors set forth in 18 U.S.C. § 3553(a), the district court
found the need for deterrence, the need for punishment, and the
need to protect the public from future crimes to be significant
factors in favor of an upward variance. Of particular import to
the district court was the fact that Hawes continued to use
Burke’s identity and stole the identity of another victim
following his indictment. In the district court’s view, these
actions demonstrated a lack of remorse or contrition. In the
end, the district court concluded, “I don’t think there are
enough resources in the federal arsenal to accomplish
[rehabilitation] with this defendant. But what I do know is the
longer he’s incarcerated, the fewer opportunities he’ll have to
do this to anyone else.” J.A. 99. Accordingly, the district
court sentenced Hawes to a term of imprisonment of 120 months.
This appeal followed.
9
III.
A.
In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005), the Supreme Court invalidated both 18
U.S.C. § 3553(b)(1), which made the Sentencing Guidelines
mandatory, and 18 U.S.C. § 3742(e), which required appellate
courts to conduct a de novo review of departures from the
Guidelines. 543 U.S. at 260-62, 125 S. Ct. 738. As a result of
the Booker decision, the Guidelines are now advisory, and
appellate courts are limited to reviewing sentencing decisions
to determine whether such sentences are “reasonable.” Gall v.
United States, 128 S. Ct. 586, 594, 169 L. Ed. 2d 445 (2007).
As the Supreme Court has made clear, the “appellate
‘reasonableness’ review” required by Booker “merely asks whether
the trial court abused its discretion.” Rita v. United States,
127 S. Ct. 2456, 2465, 168 L. Ed. 2d 203 (2007).
Although the Guidelines are no longer mandatory, they
remain “the starting point and the initial benchmark” for any
sentencing decision. Gall, 128 S. Ct. at 596. Thus, in making
a sentencing determination, the district court should begin by
calculating the applicable Guidelines range. Id. As the
Supreme Court has recognized, the advisory Guidelines range
“reflect[s] a rough approximation of sentences that might
achieve § 3553(a)’s objectives.” Kimbrough v. United States,
10
128 S. Ct. 558, 574, 169 L. Ed. 2d 481 (2007). Consequently,
using the advisory Guidelines range as a “starting point
furthers Congress’ desire for efficient administration and
nationwide consistency in sentencing.” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007).
Once the appropriate Guidelines range has been calculated,
the district court should give the parties “an opportunity to
argue for whatever sentence they deem appropriate.” Gall, 128
S. Ct. at 596. The district court then should consider the
factors set forth in § 3553(a) to determine whether such factors
support the sentence requested by either party. Id. Those
factors are as follows: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant”;
(2) “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
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”; (3) “the kinds of sentences available”; (4)
the kinds of sentence and the sentencing range established for
“the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines” in effect
11
at the time of sentencing; (5) “any pertinent policy statement
issued by the Sentencing Commission” which is in effect at the
time of sentencing; (6) “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct”; and (7) “the need to provide
restitution to any victims of the offense.” 18 U.S.C.A.
§ 3553(a). The statute further requires the sentencing court to
“impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this
subsection.” Id.In determining the appropriate sentence, the district court
“may not presume that the Guidelines range is reasonable.”
Gall, 128 S. Ct. at 596-97; Rita, 127 S. Ct. at 2465 (“In
determining the merits of these arguments, the sentencing court
does not enjoy the benefit of a legal presumption that the
Guidelines sentence should apply.”). Rather, the court must
make an individualized assessment, based upon the facts
presented, and determine whether a sentence outside of the
Guidelines is warranted. Gall, 128 S. Ct. at 597. If the
district court decides to impose a non-Guidelines sentence, the
court then “must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the
degree of the variance.” Id. In Gall, the Supreme Court found
12
“it uncontroversial that a major departure should be supported
by a more significant justification than a minor one.” Id.
As the last step of the sentencing process, the district
court must provide an adequate explanation of its sentencing
decision “to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Id. The district
court “must give serious consideration to the extent of any
departure from the Guidelines and must explain his conclusion
that an unusually lenient or an unusually harsh sentence is
appropriate in a particular case with sufficient
justifications.” Id. at 594. In explaining its sentencing
decision, a district court is not required to “discuss each
factor set forth in § 3553(a) in checklist fashion”; rather, “it
is enough to calculate the range accurately and explain why (if
the sentence lies outside it) this defendant deserves more or
less.” United States v. Moreland, 437 F.3d 424, 432-33 (4th
Cir. 2006)(quoting United States v. Dean, 414 F.3d 725, 729 (7th
Cir. 2005)) (internal quotation marks omitted).
On appeal, this Court reviews the reasonableness of the
sentence imposed, whether the sentence is inside or outside the
Guidelines range, “under a deferential abuse-of-discretion
standard.” United States v. Abu Ali, 528 F.3d 210, 260 (4th
Cir. 2008) (quoting Gall, 128 S. Ct. at 591), pet. for cert.
filed, 77 U.S.L.W. 3242 (Oct. 6, 2008). This review involves
13
two steps. First, we must examine the sentence for
“significant” procedural errors, such as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentencing based on clearly erroneous
facts, or failing to adequately explain the chosen sentence –
including an explanation of the Guidelines range.” Gall, 128 S.
Ct. at 597.
If the district court’s decision is procedurally sound, we
then consider whether the sentencing decision is substantively
reasonable. In conducting this review, we must “take into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” Id. “Under this
approach, the applicable guidelines range plays an important
role.” Abu Ali, 528 F.3d at 261. If the sentence is within the
Guidelines range, we may presume that the sentence is
reasonable, although such a presumption is not required. Gall,
128 S. Ct. at 597. If the sentence is outside of the Guidelines
range, however, we “may not apply a presumption of
unreasonableness.” Id. “To hold otherwise would fatally
undermine the Court’s holding in Booker.” Pauley, 511 F.3d at
473. In reviewing a non-Guidelines sentence, the appellate
court “may consider the extent of the deviation, but must give
due deference to the district court’s decision that the
14
§ 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 128 S. Ct. at 597. “Even if we would have
reached a different sentencing result on our own, this fact
alone is ‘insufficient to justify reversal of the district
court.’” Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at
597).
As always, when considering the reasonableness of a
sentence, we review the district court’s legal conclusions de
novo and its factual findings for clear error. Abu Ali, 528
F.3d at 261.
B.
The first step in our review of Hawes’ sentence is a
determination of whether there were any significant procedural
errors.
Hawes concedes that the district court committed no
procedural errors in determining his sentence. 1 The parties are
in agreement that the district court properly calculated the
1
We note that the district court did not offer Hawes an
opportunity to allocute until after the court began to impose
sentence. Failure to afford a defendant the opportunity to
allocate is reversible error where it can be shown that an
exercise of the right of allocution could have resulted in a
lesser sentence. See United States v. Muhammad, 478 F.3d 247,
249-50 (4th Cir. 2007). Hawes does not challenge this aspect of
his sentencing, however, and therefore, we consider this issue
to have been waived on appeal.
15
Guidelines range to be 27 to 33 months’ imprisonment. Upon
calculating the applicable Guidelines range, the district court
advised Hawes that it was considering an upward variance and/or
departure and afforded the parties ample opportunity to argue
their respective positions on the issue. The district court
then considered the relevant Guideline departure provisions and
the § 3553(a) sentencing factors and determined that the unique
facts and circumstances of the case were sufficiently compelling
to justify a sentence outside of the Guidelines. 2 Further, the
district court provided an adequate explanation of its
sentencing decision through its oral remarks during the
sentencing hearing. Accordingly, we conclude that the sentence
imposed on Hawes was procedurally sound.
C.
Having found no significant procedural errors, we now must
determine whether the sentence is substantively reasonable.
2
While this Court previously has required a sentencing
court to calculate a Guidelines departure sentence before
considering the imposition of a variance sentence, see Moreland,
437 F.3d at 432, this two-step process no longer appears
necessary under Gall, which merely requires the sentencing court
to “consider the extent of the deviation and ensure that the
justification is sufficiently compelling” to support a non-
Guidelines sentence. 128 S. Ct. at 597.
16
Since Booker, the Supreme Court has stressed that the
district court’s sentencing decisions are entitled to due
deference and should be overturned only where the district court
has abused its discretion. See Rita, 127 S. Ct. at 2465; Gall,
128 S. Ct. at 597. In Gall, the Supreme Court rejected the
proposition that the district court must apply a heightened
standard of review to sentences outside the Guidelines range.
Gall, 128 S. Ct. at 595. In so doing, the Court explicitly
rejected any rule that would require “extraordinary”
circumstances to justify a sentence outside the Guidelines range
or which would use a “rigid mathematical formula” as a “standard
for determining the strength of the justifications required for
a specific sentence.” Id. The Court stressed that “the abuse-
of-discretion standard of review applies to appellate review of
all sentencing decisions – whether inside or outside the
Guidelines range.” Gall, 128 S. Ct. at 596 (emphasis added).
This deferential standard of review requires appellate
courts to recognize that, for any given case, there is a range
of permissible sentences which may be deemed substantively
reasonable. “[T]here is not a single reasonable sentence but,
rather, a range of reasonable sentences. Consequently, reversal
will result if – and only if – the sentencing court’s ultimate
determination falls outside the expansive boundaries of that
universe.” United States v. Martin, 520 F.3d 87, 92 (1st Cir.
17
2008) (citation omitted). “A sentencing court abuses or exceeds
its discretion when its decision . . . cannot be located within
the range of permissible decisions.” United States v. Cutler,
520 F.3d 136, 157 (2d Cir. 2008)) (quoting United States v.
Canova, 485 F.3d 674, 679-80 (2d Cir. 2007)) (internal quotation
marks omitted). Because there is a range of permissible
outcomes for any given case, an appellate court must resist the
temptation to “pick and choose” among possible sentences and
rather must “defer to the district court’s judgment so long as
it falls within the realm of these rationally available
choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th
Cir. 2007), cert. denied, 128 S. Ct. 1917, 170 L. Ed. 2d 778(2008); see also United States v. Carter, 538 F.3d 784, 790 (7th
Cir. 2008) (noting substantive reasonableness “contemplates a
range, not a point”).
Appellate courts also “must give due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall, 128 S. Ct. at
597. Such deference is justified because a district judge “is
in a superior position to find facts and judge their import
under § 3553(a) in the individual case. The judge sees and
hears the evidence, makes credibility determinations, has full
knowledge of the facts and gains insights not conveyed by the
record.” Id. “It is not for the Court of Appeals to decide de
18
novo whether the justification for a variance is sufficient or
the sentence reasonable.” Id. at 602.
Of course, the high degree of deference afforded a district
court’s sentencing decision does not render appellate review
meaningless. “Gall did not substitute a regime of total
unreviewability for the fallen regime of Guidelines rigidity.”
Abu Ali, 528 F.3d at 266. As this Court stated in Moreland,
“‘reasonableness’ is not a code-word for ‘rubber stamp.’” 437
F.3d at 433. “The ‘totality of the circumstances’ substantive
reasonableness calculus demands that we proceed beyond a
formalistic review of whether the district court recited and
reviewed the § 3553(a) factors and ensure that the sentence
caters to the individual circumstances of a defendant, yet
retains a semblance of consistency with similarly situated
defendants.” Evans, 526 F.3d at 167 (Gregory, J., concurring).
Such review is to ensure that the district court has not merely
provided “lip service” to the § 3553(a) factors, but rather has
given reasonable weight to such factors as the individual
circumstances of the case require, so as to achieve the purposes
of sentencing as set forth in § 3553(a), and has not given
weight to improper factors. With these principles in mind, we
now turn to the sentence imposed upon Hawes in the present case.
19
D.
1.
In his appellate brief, Hawes first contends that the
district court erred in failing to justify adequately the extent
of its departure from the top of the applicable Guidelines
range. Specifically, Hawes relies upon United States v. Dalton,
477 F.3d 195 (4th Cir. 2007), in support of his argument that
the district court failed to adopt an incremental approach
through the criminal history categories or offense levels to
reach the appropriate sentence.
In Dalton, this Court remanded for re-sentencing on the
grounds that the district court in upwardly departing from the
Guidelines range did not “employ the incremental approach
dictated by [U.S.S.G.] § 4A1.3(a)(4)(B).” Id. at 199. This
Guidelines provision governs upward departures from Criminal
History Category VI and requires district courts to “structure
the departure by moving incrementally down the sentencing table
to the next higher offense level in Criminal History Category VI
until it finds the guidelines range appropriate to the case.”
Id. Dalton is not binding in the present case, however, as the
district court which sentenced Hawes did not base its decision
for upward departure upon § 4A1.3(a)(4)(B), nor was Hawes within
Criminal History Category VI. As such, Hawes’ reliance on
Dalton is simply misplaced.
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2.
Hawes further argues in his brief to this Court that the
district court’s sentence is “unreasonable on its face” because
the variance imposed was 264% above the applicable Guidelines
range. The Supreme Court in Gall, however, explicitly rejected
the use of such a “rigid mathematical formula . . . as the
standard for determining the strength of the justifications
required for a specific sentence.” 128 S. Ct. at 595. Thus,
the fact that a sentence is 200%, or even 300%, above the
Guidelines range does not render a sentence unreasonable per se.
Rather, as the Supreme Court instructed, the relevant inquiry is
whether the justification for such deviation is “sufficiently
compelling to support the degree of the variance.” Id. at 597.
As such, the fact that Hawes’ sentence was well above the
Guidelines’ range, while relevant, does not of itself render the
district court’s decision substantively unreasonable.
3.
Finally, Hawes argues that the district court’s sentence
creates an unwarranted disparity among similar defendants
convicted of similar crimes, and that this disparity is so
severe that it requires that his sentence be vacated. In so
arguing, Hawes points this Court to a recent data report of the
Sentencing Commission detailing the median sentence and median
21
departure in identity fraud cases nationwide since the Supreme
Court’s decisions in Gall and Kimbrough. The fact that Hawes’
sentence may be more severe than the average sentence imposed in
identity fraud cases nationally does not establish that the
district court’s sentence in the present case failed to address
the “need to avoid unwarranted sentence disparities” recognized
in § 3553(a)(6). That is not to say that statistical
information is never relevant to the sentencing calculus;
indeed, it is precisely this type of information –- the typical
sentencing range for the typical defendant charged with a
particular offense -- which the Sentencing Guidelines themselves
seek to provide. “[B]y devising a recommended sentencing range
for every type of misconduct and every level of criminal
history, the Guidelines as a whole embrace ‘the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.’” United
States v. Johnson, 445 F.3d 339, 343 (4th Cir. 2006) (quoting 18
U.S.C. § 3553(a)(6)).
The determination of an appropriate sentence in any
particular case requires an individualized assessment of the
facts and circumstances presented by that particular defendant.
While Hawes argues that the Court should consider statistical
data regarding the median sentence imposed on defendants
convicted of similar crimes in reviewing his sentence, such data
22
does not provide the particulars of the defendants who were
sentenced and the crimes they committed. As such, this data
does not provide the information necessary to determine whether
the defendants who received such sentences are truly comparable
to the defendant at hand. As this Court found in United States
v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), a defendant should be
compared only to other defendants with similar circumstances and
histories. Id. at 267. Because the Court cannot possibly
determine the circumstances and histories of each individual
defendant whose sentences comprise this statistical information,
the assignment of dispositive weight to this type of data would
be antithetical to the notion of the individualized assessment
required for fashioning an appropriate sentence for a particular
defendant.
In imposing Hawes’ sentence, the district court calculated
the advisory Guidelines range, but ultimately concluded that
this case fell “outside the heartland” of those cases to which
the advisory Guidelines range was intended to apply. See Rita,
127 S. Ct. at 2465. Indeed, the district court found that this
case warranted both a departure under Application Note 19 of
U.S.S.G. § 2B1.1 and a variance under § 3553(a). Application
Note 19 provides that an upward departure may be warranted in an
identity fraud case where:
23
(I) The offense caused substantial harm to the
victim’s reputation or credit record, or the
victim suffered a substantial inconvenience
related to repairing the victim’s reputation
or a damaged credit record.
(II) An individual whose means of identification
the defendant used to obtain unlawful means
of identification is erroneously arrested or
denied a job because an arrest record has
been made in that individual’s name.
(III) The defendant produced or obtained numerous
means of identification with respect to one
individual and essentially assumed that
individual’s identity.
U.S.S.G. § 2B1.1, app. note 19(A)(vi). As the district court
properly found, all three elements were clearly satisfied in
this case.
First, there can be no doubt that Hawes’ actions of
identity fraud caused substantial harm and inconvenience to his
victim. In the more than ten years during which Hawes stole
Burke’s identity, Hawes incurred unpaid medical bills, credit
card debt, telephone bills, cable bills, and child support
obligations in Burke’s name, all of which harmed Burke’s
reputation and credit record. Burke’s credit record was so
damaged that Burke was forced to obtain a new Social Security
number. Burke testified extensively regarding the substantial
inconvenience and stress he suffered as a result of Hawes’
conduct. Burke testified that he could never completely clean
up his credit report because “new things would pop up all the
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time. So it was a never-ending nightmare.” J.A. 45. He
described how “the collection agencies became the worst,” as
they continued to call him for over ten years for the unpaid
bills that Hawes incurred in his name. J.A. 45-46. Burke
testified that for several years, collection agencies called him
at home and at work on a daily basis. Burke estimated that he
spent “thousands of hours” trying to repair his credit record.
J.A. 46.
Hawes’ actions also caused his victim financial hardship.
Burke testified that because his credit was destroyed, he had to
pay 22 percent interest for a car loan, far higher than he
should have paid. Burke further testified that he had to pay
higher interest on credit cards, and he could not be the primary
borrower on his home mortgage. Based upon this evidence, the
district court did not err in concluding that Hawes had caused
substantial harm and inconvenience to his victim.
Second, the evidence establishes that Hawes stole Burke’s
Social Security card and birth certificate, and that he used
these means of identification to obtain a driver’s license in
Burke’s name. Hawes later committed numerous felonies using
Burke’s identity, and he was arrested, convicted, and
incarcerated for these crimes. As a result of the substantial
criminal record incurred in his name, Burke was denied a job
opportunity that would have paid him more than $20,000 more per
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year than he had been earning at the time. Burke further
testified that the criminal record compiled by Hawes had a
chilling effect on his career over the past ten years because he
was afraid to leave jobs. Burke was forced to travel to Raleigh
to be fingerprinted so that state authorities could compare his
fingerprints to those on every arrest record that Hawes had
caused authorities to open in Burke’s name. Despite Burke’s
efforts, his current job at Bank of America was delayed for more
than one month due to the existence of this criminal record.
Third, the evidence reflects that Hawes obtained numerous
means of identification with respect to Burke and essentially
assumed his identity for more than a decade. Hawes obtained a
driver’s license in Burke’s name using stolen documents. Using
Burke’s identity, Hawes married a woman in North Carolina,
fathered a child, and incurred child support obligations. Hawes
abandoned this family and moved to South Carolina, where he
fathered another child with another woman while still pretending
to be Burke. As Burke testified, “it wasn’t a case of him just
stealing my identity to get a credit card and spend[ing] a bunch
of money; he took on my identity. He was living as me in every
shape and form.” J.A. 51.
Based upon these facts, the district court was correct in
determining that an upward departure was warranted pursuant to
Application Note 19 of § 2B1.1. “When the district court
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imposes a non-Guidelines sentence based on a correct application
of the Guideline departure provisions, the resulting sentence
reflects the judgment of both the district court and the
Commission that a non-Guidelines sentence is appropriate.”
Evans, 526 F.3d at 165 n.4.
In addition to finding that an upward deviation was
justified pursuant to Application Note 19 of U.S.S.G. § 2B1.1,
the district court found that the § 3553(a) sentencing factors
as a whole justified a deviation from the Guidelines in this
case. In so finding, the district court considered the specific
“nature and circumstances of the offense,” 18 U.S.C.A.
§ 3553(a)(1). Specifically, the district court found that Hawes
had stolen Burke’s identity for more than a decade and had
caused Burke substantial harm and inconvenience during this
time. The district court further considered the “history and
characteristics of the defendant.” Id. Of particular import to
the district court was the fact that Hawes absconded after his
indictment. The district court was especially troubled by the
fact that Hawes not only continued to steal Burke’s identity
while he was a fugitive, but that he also stole the identity of
another person. Additionally, when Hawes was finally arrested
and confronted by Secret Service agents, Hawes dismissed the
gravity of the harm he had inflicted upon Burke, stating that
Burke “didn’t have a very good life to begin with.” J.A. 62.
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The district court found that Hawes’ actions following his
indictment showed a profound lack of remorse, and that the “need
for . . . deterrence in this case is greater than any case I’ve
seen in 11 years on the bench.” J.A. 98. The district court
further opined that “[t]here is no rehabilitation possible for
[a] person who so disdains his fellow man as to do what he’s
done over and over and over.” J.A. 99.
While Hawes does not contest that the district court was
entitled to depart from the Guidelines range in this case, he
argues that the extent of the deviation itself was unreasonable.
We cannot agree. Based upon the unique facts presented, the
district court concluded that a sentence of 120 months’
imprisonment was necessary in order “to promote respect for the
law,” “to provide just punishment for the offense,” “to afford
adequate deterrence,” and “to protect the public from the
further crimes of the defendant.” 18 U.S.C.A. § 3553(a)(2). We
find that the district court did not abuse its discretion in
this regard. While we may have imposed a different sentence
than the one chosen by the district court, we cannot say that
the decision to impose a sentence of 120 months’ imprisonment
falls outside the range of rational choices available to the
court. See Pauley, 511 F.3d at 474. “Although the deviation
from the Guidelines range in this case clearly is significant,
the district court provided ‘significant justification’ for the
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degree of the deviation, which is all that is required.” Evans,
526 F.3d at 163 (affirming sentence of 125 months for defendant
convicted of identity fraud, where sentence constituted 300%
upward deviation from advisory Guidelines range). For these
reasons, we conclude that Hawes’ sentence is substantively
reasonable.
IV.
After careful review, we are satisfied that the district
court’s decision to impose a non-Guidelines sentence of 120
months’ imprisonment was sufficiently justified under the
circumstances. Accordingly, we affirm the judgment of the
district court.
AFFIRMED
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