United States v. Ohin

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 16, 2010
• Docket: 08-5252
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5252

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NICHOLAS OHIN, a/k/a Shaka,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Henry Coke Morgan, Jr., Senior District Judge. (4:08-cr-00026-HCM-FBS-1)

Argued: May 14, 2010 Decided: June 16, 2010

Before GREGORY, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Larry Mark Dash, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Robert Edward Bradenham II, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Nicholas Ohin appeals his sentence of 276 months’

imprisonment, a sentence that is higher than the top of the

Sentencing Guidelines range adopted by the district court. Ohin

contends the district court committed various procedural errors

in determining his sentence. For the reasons set forth below,

we find no merit to Ohin’s assertions and affirm the judgment of

the district court.

I.

Without a written plea agreement, Ohin pled guilty to two

counts of carjacking, in violation of 18 U.S.C. § 2119. The

convictions arose from two February 2007 incidents that occurred

in Newport News, Virginia. During the first (“Count I”), Ohin

forced a female delivery driver into her vehicle after grabbing

and repeatedly striking her in the back of the head with a

screwdriver when she tried to flee. After driving several

blocks, Ohin pushed the woman out of the vehicle. The woman was

treated at a local hospital and hospitalized for a week due to

her extensive injuries. 1 Two days later (“Count II”), Ohin

1 The treating physician described the woman’s injuries as follows: [She] had a severe distortion of her face due to the swelling that was most significant around her eyes and bleeding in the left eye. Her scalp was filled with (Continued) 2 entered a vehicle stopped at an intersection and forced the male

driver to exit. The driver reported the incident, and later in

the day, a police officer observed Ohin driving the stolen

vehicle. Ohin engaged in a high speed attempt to evade capture,

but was ultimately stopped and arrested.

After hearing the parties’ arguments, the district court

agreed with Ohin that the PSR miscalculated one component of the

Guidelines calculation related to the offense characteristics of

Count II. The court recalculated the Guidelines range using a

lower offense level, which resulted in Ohin receiving a total

combined offense level of 31. When coupled with a criminal

history category of VI, 2 Ohin’s Guidelines range was calculated

to be 188 to 235 months’ imprisonment.

Next, the district court permitted the Government to call

the victim of Count I to testify. She described the events

fresh and dried blood from multiple lacerations. Her face was so badly beaten that it was difficult to see her facial features. Her abdomen was bruised and extremely tender. Multiple lacerations with bleeding were over the abdomen, both arms and her back. (J.A. 88.) 2 The pre-sentence report (“PSR”) identified numerous convictions, arrests, and pending charges, primarily involving larceny and possession of stolen goods, assault, and possession and distribution of controlled substances. These offenses dated from 1995 (age 19) through the time of the carjackings (2007). Based on these charges, the PSR placed Ohin in the highest criminal history category, Category VI.

3 surrounding that incident, and testified Ohin stabbed her

approximately 22 times with a screwdriver. She further

testified that although her physical wounds had since healed,

she was “scared to death to go anywhere by” herself and was

still undergoing regular mental health therapy. Ohin did not

cross-examine the witness, or present any other evidence.

The district court then allowed both parties to allocate as

to an appropriate sentence. The Government contended the

Guidelines range was too low and asked the court to impose a

sentence “toward” the statutory maximum because there was not

“any more severe case that could have occurred [in Count I]

outside of [the victim] being killed by this defendant.” (J.A.

61-62.) Ohin replied that a within-Guidelines sentence was

appropriate in light of his acceptance of responsibility, the

need for substance abuse treatment, and the ability to earn

restitution for the victim upon release. 3

The district court stated “the starting point when a person

is considering an appropriate sentence under the statutory

sentencing factors should be the maximum sentence available

under the statute, because it is this kind of case for which the

maximum was contemplated.” (J.A. 66.) It then noted that Ohin

3 Neither party requested a departure, nor did the PSR provide notice of any grounds for a departure sentence.

4 “deserves some type of credit” for pleading guilty, but then

focused its comments on the “extremely troubling and

substantial” injuries the victim in Count I received, as well as

Ohin’s extensive criminal history. (J.A. 67.) The district

court thus concluded that a “varying sentence greater than the

maximum under the guidelines is appropriate . . . because there

are very few factors to mitigate what would be a maximum

sentence under the statute.” (J.A. 67.) Accordingly, it

sentenced Ohin to 276 months’ imprisonment on Count I and 180

months on Count II, to be served concurrently.

The district court subsequently also set forth its reasons

for imposing this sentence in a written opinion and order. The

written order delineated Ohin’s offenses, the statutory

maximums, and the properly-calculated Guidelines range. It

outlined the § 3553(a) factors and reiterated its duties in

imposing a sentence, including the circumstances when a variance

sentence is appropriate. The court then held that a Guidelines

sentence “did not serve the factors listed under 18 U.S.C. §

3553(a)” because while Ohin “should receive some benefit from

entering a guilty plea . . . such a plea was the only mitigating

factor concerning the term of imprisonment imposed.” (J.A. 80.)

It stated that it was important to look not just “to the

advisory Guidelines range, but also to the maximum term of

imprisonment provided by the statute” and “it was difficult to

5 imagine a worse case under the statute than this one and . . .

this case is the type for which the maximum term of imprisonment

was contemplated.” (J.A. 80.) Ohin noted a timely appeal,

and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742.

II.

Ohin contends his sentence is procedurally unreasonable

because the district court started its sentencing decision based

on the 300-month statutory maximum and “worked down” to

determine a sentence rather than starting with the 188-235 month

Guidelines range. He also asserts the district court failed to

explain why the Guidelines range was insufficient and why a

departure sentence would not adequately address its concerns

before deciding to impose a variance sentence. Lastly, Ohin

maintains that the court did not adequately explain the basis

for its sentence. For these reasons, he requests that we vacate

the sentence and remand for resentencing.

We review any sentence, “whether inside, just outside, or

significantly outside the Guidelines range,” for abuse of

discretion. Gall v. United States, 552 U.S. 38, 41 (2007). The

Supreme Court delineated our sentencing review process in Gall:

first, we “ensure that the district court committed no

significant procedural error.” Id. at 51. If, and only if, we

6 find the sentence procedurally reasonable, then we will

“consider the substantive reasonableness of the sentence imposed

. . . .” Id. Procedural errors include “failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence—including

an explanation for any deviation from the Guidelines range.”

Id.

Ohin’s first argument centers on the district court’s

statement from the bench that “the starting point when a person

under the statute . . . .” (J.A. 66.) Read in isolation, this

statement is incorrect. “[T]he Guidelines should be the

starting point and the initial benchmark” of sentencing. Gall,

552 U.S. at 49 (emphasis added). Read in context, however, we

conclude that the statement does not require us to vacate Ohin’s

sentence because the district court undertook the proper

analysis before determining what sentence to impose.

For example, the district court’s written opinion clearly

sets out the proper basis for determining a sentence and

reflects the court’s statement from the bench on the maximum

7 sentence available was a misstatement that did not guide the

court’s actual determination.

The Court must fashion a sentence that is “sufficient, but not greater than necessary” to serve the sentencing factors set forth under 18 U.S.C. § 3553(a). United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). First, the Court must determine whether or not the sentencing range suggested by the advisory Guidelines serves these factors. See, e.g., United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006). . . . If the resulting sentence still does not serve the § 3553(a) factors, then the Court may impose a variance sentence, i.e., a sentence that does not fall within the advisory Guidelines range, provided that the variance sentence falls within any statutory limitations and is “sufficient, but not greater than necessary, to comply with the purposes of [18 U.S.C. § 3553(a)(2).” Davenport, 445 F.3d at 370 (citation omitted).

(J.A. 79.) (Emphasis added.)

Even prior to its “starting point” statement, the district

court had correctly calculated Ohin’s Guidelines range. 4 See

United States v. Engle, 592 F.3d 495, 499-500 (4th Cir. 2010).

It then listened to and considered the parties’ arguments as to

an appropriate sentence. See id. at 500. Addressing the §

3553(a) factors – specifically, the nature and characteristics

of the offense as well as the defendant’s criminal history – the

court concluded that an above-Guidelines sentence was

appropriate. See id. While the court considered the statutory

4 Ohin concedes the district court correctly calculated the Guidelines range and he raises no claim of error in that regard.

8 maximum in arriving at that sentence, it did not make the

statutory maximum the sole basis for its decision. The court’s

methodology satisfied Gall and does not warrant reversal. See

id. at 500; Gall, 552 U.S. at 49-52.

Next, Ohin asserts that the district court’s approach to

the sentencing process was improper because it moved directly

from the calculation of the Guidelines range to imposing a

variance sentence without first considering whether the

Guidelines’ departure provisions would adequately address its

concerns. That argument is foreclosed by this Court’s opinion

in United States v. Evans, 526 F.3d 155 (4th Cir. 2008). In

Evans, we held that although the district court may have erred

in concluding certain Guidelines-based departure provisions

applied, because the district court also adequately explained

its sentence in terms of the § 3553(a) factors as a basis for a

variance sentence, Evans’ sentence was reasonable. Id. at 164.

In so holding, we stated:

[A]lthough adherence to the advisory Guidelines departure provisions provides one way for a district court to fashion a reasonable sentence outside the Guidelines range, it is not the only way. Rather, after calculating the correct Guidelines range, if the district court determines that a sentence outside that range is appropriate, it may base its sentence on the Guidelines departure provisions or on other factors so long as it provides adequate justification for the deviation.

9 Id. The district court thus did not err in moving directly to

the § 3553(a) factors and immediately considering a variance

sentence once it determined that an above-Guidelines sentence

was appropriate. 5

Lastly, Ohin asserts the district court failed to

adequately explain the basis for its sentence. The district

court “must make an individualized assessment based on the facts

presented” when it sentences a defendant. Gall, 552 U.S. at 50.

As we explained in United States v. Carter, 564 F.3d 325 (4th

Cir. 2009), this means:

the district court must “state in open court” the particular reasons supporting its given sentence. 18 U.S.C. § 3553(c) (2006). In doing so, “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456,

5 Ohin’s argument that the district court was required to follow an incremental approach to increase his sentence based on criminal history also fails. While the Guidelines require that a district court use an incremental approach to imposing a departure sentence based on a underrepresentation of criminal history when the defendant is already in category VI, United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (citing U.S.S.G. § 4A1.3(a)(4)(B)), we have never extended that requirement to a variance sentence. Here, the court clearly imposed a variance sentence, and thus was not obligated to follow the approach mandated for departure sentences. See Irizarry v. United States, 553 U.S. 708, ___, 128 S. Ct. 2198 (2008) (noting differences between departure sentences and variance sentences and holding the Guidelines notice requirements for departure sentences do not apply to variance sentences).

10 2468 (2007). This not only “allow[s] for meaningful appellate review” but it also “promote[s] the perception of fair sentencing.” Gall, 128 S.Ct. at 597. “Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence” than that set forth in the advisory Guidelines, a district judge should address the party’s arguments and “explain why he has rejected those arguments.” Rita, 127 S. Ct. at 2468.

Id. at 328. In Carter, we concluded the district court failed

to “justify Carter’s sentence with an individualized rationale.”

Id. at 328-29. The problem in Carter was that the district

court failed to explain how the § 3553(a) factors “applied to

Carter,” and that its “asserted ‘reasons’ could apply to any

sentence, regardless of the offense, the defendant’s personal

background, or the defendant’s criminal history.” Id. at 329.

In contrast, the district court in the case at bar

identified and expounded upon specific reasons that it felt an

above-Guidelines sentence was appropriate for Ohin. It cited

the victim of Count I’s extensive injuries and hospitalization,

as well as her ongoing mental and psychological problems. It

also noted that it did not find Ohin’s drug use “alone” to be a

mitigating factor because the crime and victim “had nothing to

do with the drug culture and was in no way involved in it.”

(J.A. 81.) Lastly, the court relied on Ohin’s “troubling”

criminal history, which gave it “little reason to believe that

[Ohin] will be a law-abiding citizen upon his release from

confinement.” (J.A. 81.) These statements were specific to

11 Ohin’s background and the nature of the offenses for which he

had been convicted. A lengthier exposition is not necessary

especially where, as here, the relevant facts are undisputed and

their connection to an above-Guidelines sentence readily

apparent. E.g., Gall 552 U.S. at 50; United States v. Lynn, 592

F.3d 572, 576 (4th Cir. 2010). The court’s statements satisfy

us that it “ha[d] considered the parties’ arguments and ha[d] a

reasoned basis for exercising [its] own legal decisionmaking

authority” in light of § 3553(a). Carter, 564 F.3d at 328.

Accordingly, there is no basis for vacating the sentence and

requiring additional exposition.

III.

For the aforementioned reasons, we affirm the district

court’s judgment.

AFFIRMED