Case Information
*1 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Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. *2
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 of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(2000). He was sentenced to 57 months’ imprisonment on the drug conspiracy conviction and to a consecutive sentence of 168 months’ imprisonment on the firearm conviction, for an aggregate sentence of 225 months’ imprisonment. On appeal, Batts challenges his sentence, alleging that the Government breached the plea agreement by moving for an upward departure on the drug conspiracy conviction and that his sentence is unreasonable. For the reasons that follow, we affirm Batts’ sentence for the 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 establishing that breach by a
preponderance of the evidence. United States v. Snow , 234 F.3d
187, 189 (4th Cir. 2000). 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 establish that the plea
*3
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,
“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,
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 *4 the district court at sentencing evidence or information under 18 U.S.C. § 3661. The upward departure motion, which was based on Batts’ conduct during the drug conspiracy and past involvement in crimes of violence, was consistent with this provision. Accordingly, because the Government did not breach the plea agreement, we discern no plain error.
Batts also challenges as unreasonable his 168-month
sentence for the firearm conviction. In imposing a sentence
after United States v. Booker,
In selecting a sentence that serves § 3553(a), the district court should consider whether a 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 *5 does not serve the § 3553(a) factors, the court may elect to impose a non-Guidelines sentence. Id.
Our review of a post-Booker sentence is for
reasonableness, which includes procedural and substantive
components. “A sentence may be procedurally unreasonable . . .
if the district court provides an inadequate statement of
reasons or fails to make a necessary factual finding. A
sentence may be substantively unreasonable if the court relies
on an improper factor or rejects policies articulated by
Congress or the Sentencing Commission.” Id. at 434. 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 to the
extent of the divergence from the sentencing range.” Hernandez-
Villanueva,
In this case, after hearing testimony concerning Batts’ involvement in prior crimes of violence, the district court upwardly departed on the sentence for the firearm conviction, concluding that the “facts” and Batts’ “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.
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 VI until it finds a [G]uideline range appropriate to this case.” USSG § 4A1.3(a)(4)(B). 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 the seriousness of the defendant’s criminal conduct.” United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992).
Batts contends that is sentence is procedurally defective because the district court failed to move incrementally through the sentencing table. 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 table in imposing the sentence for the firearm conviction. Instead, the court simply stated its view that a “sentence that is double what would otherwise be the mandatory minimum” was warranted. Although a *7 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.” Moreland,
Here, the sentence the district court imposed for the firearm conviction is twice the advisory Guidelines sentence. We conclude that the district court’s explanation for the sentence is devoid of the “compelling” reasons necessary to justify the upward departure. 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 possession of a
weapon, as well as host of other arrests. 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
*9
other available sentencing options. Accordingly, we vacate
Batts’ sentence for the firearm conviction and remand for
resentencing with a more “rigorous sentencing analysis.”
Dalton,
Therefore, we affirm Batts’ sentence for the drug conspiracy conviction. 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
Notes
[*] 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.