United States v. Batts , 317 F. App'x 329 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4179
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LINWOOD BATTS, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00064-BO-1)
Submitted: January 30, 2009 Decided: March 13, 2009
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Linwood Batts, Jr. pled guilty pursuant to a written
plea agreement to one count of conspiracy to possess with the
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1), 846 (2000), and one count of carrying a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(2000). He was sentenced to 57 months’
imprisonment on the drug conspiracy conviction and to a
consecutive sentence of 168 months’ imprisonment on the firearm
conviction, for an aggregate sentence of 225 months’
imprisonment. On appeal, Batts challenges his sentence,
alleging that the Government breached the plea agreement by
moving for an upward departure on the drug conspiracy conviction
and that his sentence is unreasonable. For the reasons that
follow, we affirm Batts’ sentence for the drug conspiracy
conviction, but vacate his sentence for the firearm conviction
and remand for resentencing.
A defendant alleging the Government’s breach of a plea
agreement bears the burden of establishing that breach by a
preponderance of the evidence. United States v. Snow, 234 F.3d
187, 189 (4th Cir. 2000). Where a party raises the alleged
breach for the first time on appeal, we review for plain error.
United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997).
Accordingly, Batts must not only establish that the plea
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agreement was breached, but also that “the breach was ‘so
obvious and substantial that failure to notice and correct it
affect[ed] the fairness, integrity or public reputation of the
judicial proceedings.’” Id. at 66 & n.4 (quoting United States
v. Fant, 974 F.2d 559, 565 (4th Cir. 1992)).
“It is well-established that the interpretation of
plea agreements is rooted in contract law, and that ‘each party
should receive the benefit of its bargain.’” United States v.
Peglera, 33 F.3d 412, 413 (4th Cir. 1994) (quoting United States
v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993)). “A central
tenet of contract law is that no party is obligated to provide
more than is specified in the agreement itself.” Id.“Accordingly, in enforcing plea agreements, the government is
held only to those promises that it actually made,” and “the
government’s duty in carrying out its obligations under a plea
agreement is no greater than that of ‘fidelity to the
agreement.’” Id. (quoting United States v. Fentress, 792 F.2d
461, 464 (4th Cir. 1986)).
We have reviewed the record and conclude that the
Government did not breach the plea agreement by moving for the
upward departure on the drug conspiracy conviction. The
agreement contained no provision prohibiting the Government from
moving for an upward departure. Moreover, under the express
terms of the agreement, the Government was allowed to present to
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the district court at sentencing evidence or information under
18 U.S.C. § 3661. The upward departure motion, which was based
on Batts’ conduct during the drug conspiracy and past
involvement in crimes of violence, was consistent with this
provision. Accordingly, because the Government did not breach
the plea agreement, we discern no plain error.
Batts also challenges as unreasonable his 168-month
sentence for the firearm conviction. In imposing a sentence
after United States v. Booker, 543 U.S. 220 (2005), a sentencing
court must engage in a multi-step process. First the court must
correctly determine the applicable sentencing range prescribed
by the Guidelines. United States v. Hernandez-Villanueva, 473
F.3d 118, 122 (4th Cir. 2007). The court must then consider
whether a sentence within this advisory range “serves the
factors set forth in [18 U.S.C.] § 3553(a) and, if not, select a
sentence [within statutory limits] that does serve those
factors.” United States v. Green, 436 F.3d 449, 456 (4th Cir.
2006).
In selecting a sentence that serves § 3553(a), the
district court should consider whether a departure is
appropriate based on the Guidelines Manual or relevant case law.
United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).
If an “appropriate” basis for departure exists, the district
court may depart, but if the resulting departure range still
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does not serve the § 3553(a) factors, the court may elect to
impose a non-Guidelines sentence. Id.
Our review of a post-Booker sentence is for
reasonableness, which includes procedural and substantive
components. “A sentence may be procedurally unreasonable . . .
if the district court provides an inadequate statement of
reasons or fails to make a necessary factual finding. A
sentence may be substantively unreasonable if the court relies
on an improper factor or rejects policies articulated by
Congress or the Sentencing Commission.” Id. at 434. When we
review a sentence outside the advisory sentencing range, whether
the product of a departure or a variance, 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.” Hernandez-
Villanueva, 473 F.3d at 123.
In this case, after hearing testimony concerning
Batts’ involvement in prior crimes of violence, the district
court upwardly departed on the sentence for the firearm
conviction, concluding that the “facts” and Batts’ “long
exposure to violent predatory crime” warranted the departure.
The court then sentenced Batts to 168 months’ imprisonment for
the firearm conviction, double the advisory Guidelines sentence
of 84 months’ imprisonment.
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If a district court concludes that an upward departure
is warranted for a defendant with a Category VI criminal
history, the Sentencing Guidelines provide that the court is 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 a [G]uideline range
appropriate to this case.” USSG § 4A1.3(a)(4)(B). The
sentencing court should “move to successively higher categories
only upon a finding that the prior category does not provide a
sentence that adequately reflects the seriousness of the
defendant’s criminal conduct.” United States v. Cash, 983 F.2d
558, 561 (4th Cir. 1992).
Batts contends that is sentence is procedurally
defective because the district court failed to move
incrementally through the sentencing table. Batts also contends
that the district court did not adequately explain the factors
underlying its upward departure.
Although the district court discussed with the
Government’s counsel at sentencing the various sentencing ranges
that would result at various offense levels, it did not move
incrementally through the sentencing table in imposing the
sentence for the firearm conviction. Instead, the court simply
stated its view that a “sentence that is double what would
otherwise be the mandatory minimum” was warranted. Although a
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sentencing judge imposing a Guidelines departure need not
“explain its rejection of each and every intervening level,”
United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007), we
conclude that the district court’s approach in this case falls
short of that outlined in USSG § 4A1.3(a)(4)(B).
Further, as we explained in Moreland, in sentencing
post-Booker, the district court must explain the reasons
underlying the sentence it imposes, “particularly explaining any
departure or variance from the [G]uidelines range.” Moreland,
437 F.3d at 432. The court’s explanation “must be tied” to the
§ 3553(a) factors and be accompanied by appropriate factual
findings. Id. If the district court articulates plausible
reasons underlying the variance that are tied to § 3553(a), the
sentence imposed will generally be deemed reasonable. See id.
at 434. However, where the variance imposed is a “substantial
one . . ., we must more carefully scrutinize the reasoning
offered by the district court” in support of that sentence. Id.
Indeed, the further the court departs from the advisory
Guidelines range, the more “compelling” the reasons underlying
the departure need be. See id.; United States v. Evans, 526
F.3d 155, 166 (4th Cir. 2008) (where a district court decides
that an outside-Guidelines sentence is warranted, it must ensure
that the justification is sufficiently compelling to support the
degree of variance).
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Here, the sentence the district court imposed for the
firearm conviction is twice the advisory Guidelines sentence.
We conclude that the district court’s explanation for the
sentence is devoid of the “compelling” reasons necessary to
justify the upward departure. Although the court’s explanation
for the sentence permissibly focused on Batts’ “long exposure to
violence predatory crime,” it is unclear from this statement
what crimes or conduct the district court took into account in
selecting the 168-month sentence.
Batts’ criminal record included juvenile convictions,
adult convictions for possession of stolen goods, fleeing in a
motor vehicle to elude police, and criminal possession of a
weapon, as well as host of other arrests. At sentencing, the
district court heard testimony concerning Batts’ involvement in
prior instances of violence criminal conduct, including shoots,
murders, robberies, home invasions, and his possession of a
stolen weapon, for which he was not successfully prosecuted.
Although a district court may properly consider similar adult
criminal conduct not resulting in a criminal conviction, USSG
§ 4A1.3(a)(2)(E), as well as the factual circumstances
underlying prior arrests, United States v. Dixon, 318 F.3d 585,
591 (4th Cir. 2003), in deciding to depart, the district court
did not move incrementally through the sentencing table and
failed to explain why it selected the 168-month sentence from
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other available sentencing options. Accordingly, we vacate
Batts’ sentence for the firearm conviction and remand for
resentencing with a more “rigorous sentencing analysis.”
Dalton, 477 F.3d at 200. *
Therefore, we affirm Batts’ sentence for the drug
conspiracy conviction. However, we vacate the sentence for the
firearm conviction and remand for resentencing. 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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
*
Given this disposition, we do not reach Batts’ challenge
to the substantive reasonableness of his sentence. We emphasize
in this regard that our disposition should not be read as
indicating any view as to the appropriateness of the sentence
imposed. Thus, the district court, on remand, retains the
discretion to reimpose the same sentence or to select an
alternate one.
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