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    United States v. Sinclair Myers, 4th Cir. (2011)

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    This document summarizes an appeals court case involving Sinclair Archibald Myers who pled guilty to illegal reentry after deportation. The court vacated Myers' 84 month sentence and remanded the case for resentencing. The court found the district court did not adequately explain its rejection of Myers' arguments regarding the 16-level sentencing enhancement he received under the guidelines. Specifically, the district court seemed to believe it did not have authority to disagree with the sentencing commission's policy, but after Kimbrough v. United States, courts do have discretion to disagree with guidelines policies.

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    United States v. Sinclair Myers, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    27 views10 pages
    This document summarizes an appeals court case involving Sinclair Archibald Myers who pled guilty to illegal reentry after deportation. The court vacated Myers' 84 month sentence and remanded the case for resentencing. The court found the district court did not adequately explain its rejection of Myers' arguments regarding the 16-level sentencing enhancement he received under the guidelines. Specifically, the district court seemed to believe it did not have authority to disagree with the sentencing commission's policy, but after Kimbrough v. United States, courts do have discretion to disagree with guidelines policies.

    Original Description:

    Filed: 2011-08-09 Precedential Status: Non-Precedential Docket: 10-4819

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    This document summarizes an appeals court case involving Sinclair Archibald Myers who pled guilty to illegal reentry after deportation. The court vacated Myers' 84 month sentence and remanded the case for resentencing. The court found the district court did not adequately explain its rejection of Myers' arguments regarding the 16-level sentencing enhancement he received under the guidelines. Specifically, the district court seemed to believe it did not have authority to disagree with the sentencing commission's policy, but after Kimbrough v. United States, courts do have discretion to disagree with guidelines policies.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    27 views10 pages

    United States v. Sinclair Myers, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    This document summarizes an appeals court case involving Sinclair Archibald Myers who pled guilty to illegal reentry after deportation. The court vacated Myers' 84 month sentence and remanded the case for resentencing. The court found the district court did not adequately explain its rejection of Myers' arguments regarding the 16-level sentencing enhancement he received under the guidelines. Specifically, the district court seemed to believe it did not have authority to disagree with the sentencing commission's policy, but after Kimbrough v. United States, courts do have discretion to disagree with guidelines policies.

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    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
    Elijah Josiah Middleton, a/k/a Frances
    Calvin Joseph,

    Francis
    Lyndon,

    Lyndon, a/k/a
    a/k/a Stephen

    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).
    months

    He received a within-Guidelines sentence of eighty-four


    imprisonment.

    procedurally

    On

    appeal,

    unreasonable

    he

    because

    argues

    his

    the

    sentence

    district

    is

    court

    misunderstood its authority to depart from the Guidelines range,


    and

    failed

    sentence.

    to

    provide

    He

    further

    unreasonable,

    alleging

    sufficient
    argues
    no

    explanation

    his

    sentence

    empirical

    for
    is

    support

    its

    chosen

    substantively

    for

    the

    illegal

    reentry Guideline and the Guidelines 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.


    Sentencing Guidelines Manual 2L1.2(a) (2009).

    U.S.

    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.
    application

    of

    See USSG 2L1.2(b)(1)(A).

    three-level

    adjustment

    for

    After

    acceptance

    of

    responsibility, Myers resulting offense level was twenty-one.


    2

    This

    offense

    level

    and

    criminal

    history

    category

    of

    generated an advisory Guidelines range of seventy to eightyseven months imprisonment.


    Myers filed a sentencing memorandum in which he stated
    he

    had

    no

    objections

    to

    the

    PSR

    and

    stipulated

    Guidelines range had been properly calculated.

    that

    the

    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.
    Government
    (2006)

    responded

    factors,

    and,

    citing

    requested

    to

    the

    18

    U.S.C.

    top-of-the-Guidelines

    The

    3553(a)

    sentence

    of

    noted

    no

    eighty-seven months imprisonment.


    At

    sentencing,

    defense

    counsel

    again

    objections to the PSR and asked the court to impose a sentence


    no greater than 70 months.

    Counsel added, I know that thats

    the low end of the recommended or Advisory Guidelines, but I


    still think it is appropriate.
    additional
    memorandum.

    factors

    in

    Counsel then proffered three

    support

    of

    his

    written

    sentencing

    First, he clarified that he was not objecting to

    the sixteen-level enhancement as it was appropriately applied


    under the Guidelines.
    to

    be

    any

    empirical

    However, he argued there does not seem


    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

    history

    into

    consideration

    category.

    Again,

    in

    he

    establishing

    acknowledged

    his

    that

    criminal

    the

    Fourth

    Circuit has held that the enhancement is not considered doublecounting, but urged the district court to at least consider it
    as a factor in determining an appropriate sentence.
    grounds,

    he

    urged

    the

    district

    court

    to

    lower than the Advisory Guidelines Range.


    district
    adopted
    border

    court
    a

    to

    consider

    fast-tracking

    states

    up

    to

    that

    system,

    the

    sentence

    Third, he urged the

    Fourth

    which

    four-level

    fashion

    On these

    Circuit

    affords

    departure. 1

    had

    not

    defendants

    in

    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

    defense

    upon

    counsel

    release.
    raised

    The

    the

    Government,

    arguments

    observing

    pertaining

    to

    that
    the

    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.

    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

    3553(a)

    as

    concerning

    the

    court

    meritless.

    rejected
    With

    sixteen-level

    Myers

    respect

    to

    enhancement,

    the

    arguments
    his

    under

    arguments

    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, Im 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

    abuse of discretion standard.


    38, 51 (2007).

    for

    reasonableness

    under

    an

    Gall v. United States, 552 U.S.

    This review requires consideration of both the

    procedural and substantive reasonableness of a sentence.


    5

    Id.;

    see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

    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
    sentence,

    we

    calculated
    Guidelines

    determining

    the

    consider

    whether

    the
    as

    defendants
    advisory,

    procedural
    the

    district

    Guidelines

    considered

    reasonableness

    the

    court

    range,
    18

    of

    properly

    treated

    U.S.C.

    the

    3553(a)

    (2006) factors, analyzed any arguments presented by the parties,


    and sufficiently explained the selected sentence.
    U.S. at 51.

    Gall, 552

    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 courts rationale.
    (internal quotation marks omitted).

    Carter, 564 F.3d at 329-30

    Here, Myers does not dispute that the district court


    properly

    calculated

    Guidelines.

    his

    Guidelines

    range

    under

    the

    advisory

    Rather, he argues that the district court, relying

    on cases prior to the Supreme Courts decision in Kimbrough v.


    United States, 552 U.S. 85 (2007), believed it did not have the
    authority to disagree with the Commissions policy behind the
    sixteen-level enhancement and impose a lower sentence on that
    basis.
    The
    reviewing

    standard

    the

    of

    procedural

    review

    this

    adequacy

    of

    court

    employs

    sentence

    on

    when
    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

    reversing unless . . . the error was harmless.


    at 576, 578.

    standard,

    Lynn, 592 F.3d

    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.
    his claim.

    We therefore conclude that Myers preserved

    See Lynn, 592 F.3d at 578 (By drawing arguments

    from 3553 for a sentence different than the one ultimately


    7

    imposed,
    court

    an

    aggrieved

    of

    its

    party

    sufficiently

    responsibility

    to

    alerts

    render

    an

    the

    district

    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

    sentence

    different from the sentence that he received).


    It is now well established that a court may consider
    See Kimbrough,

    policy objections to the Sentencing Guidelines.


    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

    conclusion

    that

    the

    disparity between ranges for crack and powder cocaine results in


    a

    sentence

    greater

    goals of 3553(a).
    In
    objections

    his
    to

    the

    than

    necessary

    to

    achieve

    the

    sentencing

    552 U.S. at 91.


    sentencing

    memorandum,

    calculation

    of

    the

    Myers

    Guidelines

    posited

    no

    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
    8

    arguments

    regarding

    the

    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

    disagreement

    illegal reentry Guideline.

    with

    the

    policy

    behind

    the

    Rather, in our view, the district

    court simply misconstrued Myers argument as a direct challenge


    to

    the

    application

    of

    the

    sixteen-level

    establishing Myers Guidelines range.

    enhancement

    in

    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

    courts

    explicit consideration of the defendants arguments would not


    have affected the sentence imposed.

    United States v. Boulware,

    604

    (alterations

    F.3d

    quotation

    832,
    marks

    838

    (4th

    Cir.

    omitted).

    2010)
    In

    its

    response,

    and

    the

    internal

    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

    Myers 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

    remand for resentencing. 2

    error,

    we

    vacate

    Myers

    judgment

    and

    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

    Of course, by this disposition, we indicate no opinion as


    to whether the eighty-four month sentence was substantively
    reasonable.

    10

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