United States v. Sinclair Myers , 442 F. App'x 763 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4819
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SINCLAIR ARCHIBALD MYERS, a/k/a Lyndon Francis Lyndon, a/k/a
Elijah Josiah Middleton, a/k/a Frances Lyndon, a/k/a Stephen
Calvin Joseph,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cr-00028-JRS-1)
Submitted: April 20, 2011 Decided: August 9, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, S. David Schiller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sinclair Archibald Myers pled guilty without a plea
agreement to one count of illegal reentry after deportation for
an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). He received a within-Guidelines sentence of eighty-four
months’ imprisonment. On appeal, he argues his sentence is
procedurally unreasonable because the district court
misunderstood its authority to depart from the Guidelines range,
and failed to provide sufficient explanation for its chosen
sentence. He further argues his sentence is substantively
unreasonable, alleging no empirical support for the illegal
reentry Guideline and the Guideline’s severity does not relate
rationally to the offense levels established for other offenses.
We vacate and remand for resentencing.
I.
In the presentence report (“PSR”), the probation
officer assigned Myers a base offense level of eight. U.S.
Sentencing Guidelines Manual § 2L1.2(a) (2009). Sixteen levels
were added because at least one of Myers’ prior conviction was
for a drug trafficking offense for which the sentence imposed
exceeded thirteen months. See USSG § 2L1.2(b)(1)(A). After
application of a three-level adjustment for acceptance of
responsibility, Myers’ resulting offense level was twenty-one.
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This offense level and a criminal history category of V
generated an advisory Guidelines range of seventy to eighty-
seven months’ imprisonment.
Myers filed a sentencing memorandum in which he stated
he had no objections to the PSR and stipulated that the
Guidelines range had been properly calculated. However, based
on various 18 U.S.C. § 3553(a) factors, he requested a “sentence
no greater than the low end of the [G]uideline[s] range.” The
Government responded and, citing to the 18 U.S.C. § 3553(a)
(2006) factors, requested a top-of-the-Guidelines sentence of
eighty-seven months’ imprisonment.
At sentencing, defense counsel again noted no
objections to the PSR and asked the court “to impose a sentence
no greater than 70 months.” Counsel added, “I know that that’s
the low end of the recommended or Advisory Guidelines, but I
still think it is appropriate.” Counsel then proffered “three
additional factors” in support of his written sentencing
memorandum. First, he clarified that he was not objecting to
the sixteen-level enhancement as it was appropriately applied
under the Guidelines. However, he argued “there does not seem
to be any empirical data or study conducted by the . . .
Sentencing Commission that would tie or directly relate to th[e]
16-level increase.” While acknowledging that it was an argument
that the district court had heard and considered before, defense
3
counsel suggested it was a factor the district court could take
into consideration. Second, he maintained that the enhancement
constituted double-counting as his prior convictions had already
been taken into consideration in establishing his criminal
history category. Again, he acknowledged that the Fourth
Circuit has held that the enhancement is not considered double-
counting, but urged the district court to at least consider it
as a factor in determining an appropriate sentence. On these
grounds, he urged the district court to fashion a sentence
“lower than the Advisory Guidelines Range.” Third, he urged the
district court to consider that the Fourth Circuit had not
adopted a fast-tracking system, which affords defendants in
border states up to a four-level departure. 1 Additionally,
defense counsel cited to various § 3553(a) factors, noting Myers
was not in need of educational rehabilitative services as he is
a skilled carpenter, that the need to promote respect for the
law requires avoiding sentence disparities, and that Myers will
be deported upon release. The Government, observing that
defense counsel raised the arguments pertaining to the
1
“Fast-tracking refers to a procedure that originated in
states along the United States-Mexico border, where district
courts experienced high caseloads as a result of immigration
violations.” United States v. Perez-Pena, 453 F.3d 236, 238
(4th Cir. 2006). In conformity with that practice, prosecutors
seek to obtain pre-indictment pleas by offering to move for a
downward departure under USSG § 5K3.1.
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enhancement for the first time at sentencing, responded that
Myers’ arguments against application of the sixteen-level
enhancement have repeatedly been rejected by the Fourth Circuit.
The Government added that the fast-tracking disparity argument
too has been rejected by the Fourth Circuit and that, in any
event, Myers would not qualify for the motion.
The district court rejected Myers’ arguments under
§ 3553(a) as meritless. With respect to his arguments
concerning the sixteen-level enhancement, the district court
stated:
The bottom line is that this Offense Level of 21
is fully supported. The Fourth Circuit is clear about
these arguments of double counting and that 16-point
enhancement. And again, I’m sitting here in the
Fourth Circuit and I am not the King of the World. I
cannot undo what they have done. Because I, unlike
Mr. Myers, abide by the law.
Now, so all of these objections or requests for
some kind of lenient treatment flowing from these
arguments will be rejected by the Court.
Accordingly, the district court sentenced Myers within the
Guidelines range to eighty-four months’ imprisonment.
II.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
5
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A
sentence imposed within the properly calculated Guidelines range
is presumed reasonable by this Court. United States v. Mendoza-
Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
In determining the procedural reasonableness of a
sentence, we consider whether the district court properly
calculated the defendant’s Guidelines range, treated the
Guidelines as advisory, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Gall, 552
U.S. at 51. “Regardless of whether the district court imposes
an above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
Where, as here, the district court imposes a within-Guidelines
sentence, the explanation may be “less extensive, while still
individualized.” United States v. Johnson, 587 F.3d 625, 639
(4th Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010). However,
that explanation must be sufficient to allow for “meaningful
appellate review” such that the appellate court need “not guess
at the district court’s rationale.” Carter, 564 F.3d at 329-30(internal quotation marks omitted).
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Here, Myers does not dispute that the district court
properly calculated his Guidelines range under the advisory
Guidelines. Rather, he argues that the district court, relying
on cases prior to the Supreme Court’s decision in Kimbrough v.
United States, 552 U.S. 85 (2007), believed it did not have the
authority to disagree with the Commission’s policy behind the
sixteen-level enhancement and impose a lower sentence on that
basis.
The standard of review this court employs when
reviewing the procedural adequacy of a sentence on appeal
depends on whether the error was asserted in the district court.
If the party properly preserved its claim, this court reviews
for reasonableness under an abuse of discretion standard,
reversing “unless . . . the error was harmless.” Lynn, 592 F.3d
at 576, 578. The Government argues that Myers’ challenge to the
procedural reasonableness of his sentence should be reviewed for
plain error because he specifically requested a sentence within
the advisory Guidelines range. Our review of the record
discloses that defense counsel did in fact argue that the merit
of Myers’ challenge to the policy behind the sixteen-level
enhancement was “reason enough that the Court can go below the
Guidelines Range.” We therefore conclude that Myers preserved
his claim. See Lynn, 592 F.3d at 578 (“By drawing arguments
from § 3553 for a sentence different than the one ultimately
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imposed, an aggrieved party sufficiently alerts the district
court of its responsibility to render an individualized
explanation addressing those arguments, and thus preserves its
claim.”); cf. United States v. Hernandez, 603 F.3d 267, 270 (4th
Cir. 2010) (reviewing claim of procedural unreasonableness for
plain error because defendant did not argue for a sentence
different from the sentence that he received).
It is now well established that a court may consider
policy objections to the Sentencing Guidelines. See Kimbrough,
552 U.S. at 101-07. In Kimbrough, the Supreme Court held that a
district court may deviate from the advisory Guidelines range
for crack cocaine offenses based on a conclusion that the
disparity between ranges for crack and powder cocaine results in
a sentence greater than necessary to achieve the sentencing
goals of § 3553(a). 552 U.S. at 91.
In his sentencing memorandum, Myers posited no
objections to the calculation of the Guidelines range; at
sentencing, defense counsel again noted no objections to the
Guidelines range. It is clear, however, that defense counsel
sought to advance policy arguments mitigating application of the
enhancement which the court in its discretion, under Kimbrough,
could have espoused in fashioning Myers’ sentence. In
responding to Myers’ argument, the district court stated that
the Fourth Circuit was clear about arguments regarding the
8
sixteen-level enhancement. Specifically, the district court
judge pronounced he “could not undo what the Fourth Circuit has
done.” The record does not conclusively indicate that the
district court was unaware of its authority to impose a variance
sentence based on a disagreement with the policy behind the
illegal reentry Guideline. Rather, in our view, the district
court simply misconstrued Myers’ argument as a direct challenge
to the application of the sixteen-level enhancement in
establishing Myers’ Guidelines range. However, we conclude the
record supports Myers’ argument of procedural error with respect
to his policy arguments for a downward variance.
Under a harmless error standard, the Government bears
the burden of establishing that the error did not affect Myers’
substantial rights. United States v. Robinson, 460 F.3d 550,
557 (4th Cir. 2006). Specifically, the Government “may avoid
reversal only if it demonstrates that the error did not have a
substantial and injurious effect or influence on the result and
we can say with fair assurance that the district court’s
explicit consideration of the defendant’s arguments would not
have affected the sentence imposed.” United States v. Boulware,
604 F.3d 832, 838 (4th Cir. 2010) (alterations and internal
quotation marks omitted). In its response, the Government
states, “If the defendant had asked for a sentence outside the
advisory guideline range, then perhaps the record might support
9
the reading that the defendant tries to give it, but here the
defendant made his challenge to the immigration guidelines while
asking for a sentence within the guideline range.”
Because we review the procedural reasonableness of
Myer’s sentence for harmless error, Myers properly raised below
policy arguments in support of a downward variance, the district
court did not expressly adopt or reject those arguments instead
noting it was bound by Fourth Circuit law, and the Government
has not shown harmless error, we vacate Myers’ judgment and
remand for resentencing. 2 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 the
decisional process.
VACATED AND REMANDED
2
Of course, by this disposition, we indicate no opinion as
to whether the eighty-four month sentence was substantively
reasonable.
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