US v. Linwood Batts, Jr., No. 08-4179 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4179 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LINWOOD BATTS, JR., Defendant Appellant.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 Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 U.S.C. of a drug trafficking § 924(c)(2000). imprisonment on the He drug crime, was in violation sentenced conspiracy to 57 conviction of 18 months and to a consecutive sentence of 168 months imprisonment on the firearm conviction, for imprisonment. alleging that an On the aggregate appeal, sentence Batts Government of 225 challenges breached the his plea months sentence, agreement by moving for an upward departure on the drug conspiracy conviction and that his sentence is unreasonable. For the reasons that follow, the we affirm Batts sentence for 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 preponderance of the evidence. 187, 189 (4th Cir. 2000). establishing that breach by a United States v. Snow, 234 F.3d 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 2 establish that the plea 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 agreement. no greater than that of fidelity to the 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 3 the district court at sentencing evidence or information under 18 U.S.C. § 3661. on Batts The upward departure motion, which was based conduct during crimes of the drug violence, conspiracy was and past consistent with this involvement in provision. Accordingly, because the Government did not breach the plea agreement, we discern no plain error. Batts also challenges as unreasonable sentence for the firearm conviction. his 168-month 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). whether a sentence within this The court must then consider advisory range serves the factors set forth in [18 U.S.C.] § 3553(a) and, if not, select a sentence factors. [within statutory limits] that does serve those United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). In district selecting court should a sentence consider that serves whether a § 3553(a), the 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 4 does not serve the § 3553(a) factors, the court may elect to impose a non-Guidelines sentence. Our review reasonableness, components. if the which or a post-Booker includes sentence procedural and is for substantive A sentence may be procedurally unreasonable . . . district reasons of Id. court fails to provides make a an inadequate necessary factual statement of finding. A sentence may be substantively unreasonable if the court relies on an improper factor or rejects policies Congress or the Sentencing Commission. articulated Id. at 434. by 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 extent of the divergence from the sentencing range. to the 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 conviction, departed concluding on the sentence that the facts for and the Batts firearm 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. 5 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 appropriate to VI until this it case. finds [G]uideline range § 4A1.3(a)(4)(B). USSG a 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 defendant s criminal conduct. the seriousness of the United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992). Batts defective contends because that the is sentence district court incrementally through the sentencing table. is procedurally failed to move 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 sentence for the firearm conviction. stated its view that a sentence table in imposing Instead, the court simply that is double otherwise be the mandatory minimum was warranted. 6 the what would Although a 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. 437 F.3d at 432. Moreland, The court s explanation must be tied to the § 3553(a) factors findings. Id. and If be the accompanied district by court appropriate articulates factual plausible reasons underlying the variance that are tied to § 3553(a), the sentence imposed will generally be deemed reasonable. at 434. one . See id. However, where the variance imposed is a substantial . ., we must more carefully scrutinize the reasoning offered by the district court in support of that sentence. Indeed, the further the court departs from the Id. 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). 7 Here, the sentence the district court imposed for the firearm conviction is twice the advisory Guidelines sentence. We conclude sentence is that the devoid of district the justify the upward departure. court s compelling explanation reasons for the necessary to 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 weapon, as well as host of other arrests. possession of a 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 8 other available Batts sentence resentencing sentencing for with the a options. firearm more Accordingly, conviction rigorous and we vacate remand sentencing for analysis. Dalton, 477 F.3d at 200. * Therefore, we conspiracy conviction. affirm Batts sentence for the drug 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. 9

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