US v. Diane Hutchison, No. 13-4250 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4250 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DIANE CONWAY HUTCHISON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:12-cr-00004-MR-DLH-1) Submitted: October 23, 2013 Decided: November 6, 2013 Before WILKINSON, SHEDD, and KEENAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Diane Conway Hutchison appeals the twenty-one month sentence imposed after she pled guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343 (2006). The district court imposed this sentence after departing upward one criminal history category pursuant to U.S. Sentencing Guidelines Manual (USSG) § 4A1.3 (2012), based on its conclusion that Hutchison s criminal history category criminal conduct. of I underrepresented her prior Hutchison argues on appeal that the district court procedurally erred in failing to address her arguments against the departure and substantively erred in relying on an inaccurate factual conclude that premise to Hutchison s support claims the We meritorious, are departure. and accordingly vacate her sentence and remand for resentencing. We review a sentence for procedural and substantive reasonableness under an abuse of discretion standard. United States, applies 552 whether U.S. the 38, 51 sentence (2007). is The inside, same just Gall v. standard outside, or significantly outside the Guidelines range. United States v. Rivera-Santana, Cir.) 668 F.3d 95, 100-01 (4th (internal citation and quotation marks omitted), cert. denied, 133 S. Ct. 274 (2012). consider In whether defendant s determining the advisory procedural district court Guidelines 2 reasonableness, properly range, gave calculated the parties we the an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on clearly erroneous facts, and sufficiently explained the selected sentence. Gall, 552 U.S. at 49-51. In reviewing any sentence outside the Guidelines range, the appellate court must give due deference to the sentencing court s decision because it has flexibility in fashioning a sentence outside of the Guidelines range, and need only set forth enough to satisfy the appellate court that it has considered the parties arguments and has a reasoned basis for its decision. United States v. Diosdado- Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Gall, 552 U.S. at 56); see also United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (sentencing court must make an individualized assessment based on the facts presented ) (citation and emphasis omitted). Hutchison first contends that the district court failed to comply with the mandate of Gall and United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010), that the sentencing court address the defendant s non-frivolous sentence within the Guidelines range. arguments for a The Government argues that the sentence is procedurally reasonable and that any error by the district recognized that determined in court was harmless. The Hutchison s criminal history category I because 3 district Hutchison s was court properly seven prior embezzlement convictions could not be counted separately. § 4A1.2(a)(2). category as USSG Other than noting that category I is the same a defendant with no prior criminal history, the court s explanation for its sentence did not address Hutchison s arguments against a departure. Nor did the court address those arguments in at any other point the sentencing proceedings. Thus, contrary to the Government s assertions, we conclude that the court procedurally erred. Further, the error was not harmless, as there is no indication in the record that the court would have imposed the same sentence if it had addressed Hutchison s arguments. Hutchison also argues that the court substantively erred in characterizing her seven prior embezzlement convictions as providing repeated opportunities for rehabilitation. The Government argues that this is merely a recharacterization of the procedural argument asserted by Hutchison, and that the court acted within its discretion in imposing the sentence. We conclude that, although Hutchison asserts this is a substantive error, the district court procedurally erred in its characterization of Hutchison s criminal history, specifically that she having been given repeated opportunities, simply did not get the message. The record reveals that Hutchison was convicted in 1998 of seven counts of embezzlement arising from her thefts from an employer over a seven-month period in 1994. 4 Hutchison apparently pled guilty and was sentenced for all seven counts on the same day. statement, learn Hutchison from her Thus, contrary to the district court s did prior not have crimes, and repeated the opportunities court relied on to an inaccurate factual basis for its departure. The Government argues that the sentence is reasonable based on the factors. district The court court s did reference not, to however, sentence, but a departure sentence. the impose § 3553(a) a variance Although the court invoked certain § 3553(a) factors, nowhere in its explanation did the court state imposed the that, even same without sentence as the an departure, upward it would variance from have the Guidelines range. We therefore for resentencing. * facts and materials legal before vacate Hutchison s sentence and remand We dispense with oral argument because the contentions are adequately this and argument Court presented would not in the aid the decisional process. VACATED AND REMANDED * Having found procedural error, we express no opinion on the substantive reasonableness of Hutchison s sentence. On remand, the district court is free to determine whether a sentence outside the calculated Guidelines range is appropriate. 5