United States v. William Carter

425 F. App'x 527
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 15, 2011
Docket10-3341
StatusUnpublished

This text of 425 F. App'x 527 (United States v. William Carter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. William Carter, 425 F. App'x 527 (8th Cir. 2011).

Opinion

MILLER, District Judge.

William Lavon Carter appeals from his sentence of 72 months imprisonment imposed after his conviction for fraudulent use of unauthorized access devices. See 18 U.S.C. § 1029(a)(2), (b)(1). He contends that the district court 2 committed procedural errors and that the sentence imposed is substantively unreasonable. We affirm.

I.

From July 2008 through March 2010, Carter fraudulently purchased merchandise and gift cards from home improvement stores Lowe’s and Home Depot. On July 16, 2010, he pleaded guilty to one *529 count of fraudulent use of unauthorized access devices in violation of 18 U.S.C § 1029(a)(2). Under the United States Sentencing Guidelines (guidelines), Carter had a total offense level of 15 and a criminal history category of V, resulting in an advisory sentencing range between 37 and 46 months imprisonment.

The presentence investigation report (PSR.) revealed that Carter had an extensive history of theft and fraud. Included in this history was a similar 2004 conviction for fraudulent use of unauthorized access devices. For that conviction, Carter received eighteen months incarceration and two years of supervised release. Less than six months after his release from incarceration for that offense, Carter’s supervised release was revoked for a new theft and for failure to make restitution payments. After serving out the remainder of his supervised release term in prison, Carter was released from custody on November 29, 2007. Six months after release, he began the criminal activity for which he was convicted in the case underlying this appeal.

At sentencing, the district court determined that the guidelines “woefully understate^] the appropriate sentence.” It noted Carter’s extensive criminal history, and decided that “there’s a need to protect you — or to protect society from you. It’s the same kind of offenses that you keep committing over and over, only this time it’s a lot worse because of the sheer volume of money involved.” Citing just punishment, general deterrence, and incapacitation, the district court varied from the guidelines, sentencing Carter to 72 months imprisonment. Carter appeals, raising procedural error and substantive unreasonableness.

II.

We review the sentence imposed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In conducting our analysis we must first ensure that the district court did not commit a significant procedural error. Id. We then review the sentence itself for substantive reasonableness. Id.

A. Procedural Error

Carter argues that the district court committed two procedural errors: (1) it varied upwards based on an understated criminal history without first considering a traditional departure under § 4A1.3 of the guidelines; and (2) it failed to adequately justify or explain the extent of the variance.

To follow the appropriate sentencing procedure, the district court should first accurately calculate the defendant’s advisory guidelines range and “provide both parties "with an opportunity to explain their desired sentence.” United States v. Statman, 604 F.3d 529, 533 (8th Cir.2010). Second, the district court should consider whether a traditional departure is warranted under the guidelines. United States v. Sitting Bear, 436 F.3d 929, 934 (8th Cir.2006). Third, the district court should consider the 18 U.S.C. § 3553(a) factors and determine the appropriate sentence based on the facts of the case. Id.

Carter concedes that the district court properly calculated the advisory guidelines range, but argues that the district court erred by not considering a traditional departure under § 4A1.3 of the guidelines before deciding on a substantial variance. Although we have held that a failure to explicitly consider a departure under the guidelines is an error, we do not believe that the error is reversible under the facts of this case. See United States v. Maurstad, 454 F.3d 787, 790 (8th Cir. 2006).

*530 The same factors that justified the variance could similarly justify a traditional departure under the guidelines. Id. at 790. Likewise, the district court could impose the variance even if it found that no grounds for a traditional departure. United States v. Hadash, 408 F.3d 1080, 1083-84 (8th Cir.2005). Nothing in the record indicates that the district court would have ruled differently had it explicitly considered a departure under § 4A1.3. The record does, however, show that the district court clearly and explicitly considered the specific characteristics of Carter and his offense in light of the § 3553(a) factors and imposed the sentence based on those characteristics. Given the facts of Carter’s case, the district court’s failure to consider a traditional departure before varying was not a reversible error.

Carter also contends that the district court erred by failing to explain the extent of the variance. We disagree. In explaining the reasons for a particular sentence, our precedent requires a district court to provide “substantial ‘insight into the reasons for its determination.’ ” United States v. Feemster, 572 F.3d 455, 463 (8th Cir.2009) (citing United States v. Kane, 552 F.3d 748, 756 (8th Cir.2009) (reversed on other grounds)). At sentencing, the district court discussed Carter’s extensive criminal history, noted the similarity between his various convictions, and pointed out that his prior sentences had not deterred his criminal conduct. Applying the § 3553(a) factors, the district court then determined that a substantial upward variance from the guidelines was required to protect society from Carter’s escalating criminal conduct and to satisfy the objectives of just punishment and general deterrence. These considerations provide substantial insight into the reasons for the 72 month sentence.

As to the sufficiency of the district court’s explanation, we have rejected any requirement that a district court must justify the degree of the variance with mathematical certainty. See United States v. Burns, 577 F.3d 887, 895 (8th Cir.2009).

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Related

United States v. Statman
604 F.3d 529 (Eighth Circuit, 2010)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
Ferguson v. United States
623 F.3d 627 (Eighth Circuit, 2010)
United States v. Dennis Joseph Hadash
408 F.3d 1080 (Eighth Circuit, 2005)
United States v. Burns
577 F.3d 887 (Eighth Circuit, 2009)
United States v. Kane
552 F.3d 748 (Eighth Circuit, 2009)
United States v. Feemster
572 F.3d 455 (Eighth Circuit, 2009)

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Bluebook (online)
425 F. App'x 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-carter-ca8-2011.