Vacated by Supreme Court, January 7, 2008



                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-5165



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

           versus


JOSE MEDINA, JR.,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-04-419-WDQ)


Argued:   October 26, 2006                 Decided:   March 21, 2007


Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellant.    James Paul Krawczyk, Jr., Bel Air,
Maryland, for Appellee. ON BRIEF: Bonnie S. Greenberg, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

     Following the execution of a search warrant at the residence

of Jose Medina, Jr., in Aberdeen, Maryland, federal agents seized

several computers containing over 1,000 images of minors engaged in

sexually explicit conduct.             Medina was indicted in two counts for

shipping materials involving the sexual exploitation of minors by

means of a computer, in violation of 18 U.S.C. § 2252(a)(1), and

possession    of       materials   involving    the    sexual   exploitation    of

minors, in violation of 18 U.S.C. § 2252(a)(4)(B).               Medina pleaded

guilty to Count II with stipulated facts that at least one of his

computers contained “more than 10 pictures and movie images” of

child pornography, including at least one image of a victim known

to be under the age of 12, one picture of a prepubescent female in

bondage,   and     a    video   clip    of   another   in   “various   stages   of

bondage.” The maximum sentence for the offense charged in Count II

was, at the time, five years’ imprisonment.                  The United States

Sentencing Guidelines provided that under the facts agreed to,

Medina be sentenced to between 41 and 51 months’ imprisonment.

That is based on an applicable offense level of 22 and a criminal

history category of I.

     The district court sentenced Medina to 12 months and one day

imprisonment, amounting to a nine-level downward departure under

the Sentencing Guidelines and a 70% reduction from the Guidelines’

minimum recommended sentence.            To justify the variance, the court


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relied on the fact that Medina had served in the military.         As the

court explained:

     I start with the understanding that vets should get a
     break.

                            *       *     *

     [T]he old mandatory Guidelines pointed out that military
     service is not normally something that is to be rewarded.

     I think, however, under the new sentencing regime and in
     understanding that there is a necessity to promote
     respect for the law, I think one of the things that we
     can do to promote respect for the law is to have the law
     recognize that people who make positive and significant
     contributions to their country’s welfare should have that
     considered in the sentencing process. And in an advisory
     sentencing scheme, I think I am entitled to do that and
     to explicitly do that.

                            *       *     *

     I am going to sentence you at an offense level 13,
     criminal history category I, staying at the -- within the
     framework generally of guidelines, but recognizing them
     advisory and believing that a nine-level downward
     departure is appropriate, because [of] instructions from
     the sentencing considerations of the statute that the
     sentence should be no more than that necessary to foster
     the other goals of sentencing, including such things as
     deterrence.

                            *       *     *

     Your service to your country, your being a fine father
     has shown . . . indicates that you are a person who
     certainly has more good than bad, and accordingly, the
     sentence I would hope is an appropriate and fair one.

     The   government   appealed,    alleging   that   the   variance   was

unjustified and unreasonable.* The government notes that the court


      *
      Medina argues that because the government did not object at
 the sentencing proceeding to the district court’s application of

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did not even find that the defendant’s military service “was

extraordinary.”

       Following United States v. Booker, 

(2005), the

Sentencing Guidelines are, of course, only advisory, and “[a]

sentence falling outside of the properly calculated Guidelines

range is not ipso facto unreasonable.” United States v. Green, 

, 457 (4th Cir. 2006).   But if “the district court provides

an inadequate statement of reasons or relies on improper factors

in” rejecting the recommendations of the Guidelines, the sentence

“will be found unreasonable and vacated.”         

reasons for imposing a variance sentence “must be tied to

the factors set forth in § 3553(a) and must be accompanied by

findings of fact as necessary.”        United States v. Moreland, 

, 432 (4th Cir. 2006).    Moreover, the court may not give

“excessive weight” to any single factor.       See 

.    “The farther the court diverges from the advisory guideline

range, the more compelling the reasons for the divergence must be.”

.

       In this case, we conclude that the district court’s variance

sentence, based on Medina’s military service, was unreasonable in


 the factors under § 3553(a) or to the sentence imposed, it has
 “waived any argument” that his sentence is unreasonable. Prior to
 the district judge imposing the sentence, however, the government,
 both in writing and on the record at the sentencing hearing, argued
 against any sentence outside of the advisory Guideline range. This
 was sufficient to preserve the government’s claim for appeal. See
 United States v. Clark, 

, 686 n.1 (4th Cir. 2006).

                                 -4-
that it was not adequately justified by the factors found in 18

U.S.C. § 3553(a).        Accordingly, we vacate Medina’s sentence and

remand for resentencing.

     First, the district court gave excessive weight to a single

factor -- Medina’s military service -- to justify so great a

variance.     See 

(stating that a district

court may not give “excessive weight” to any single factor).

     Second, not only did the district court rely primarily on

Medina’s military service, but the Sentencing Guidelines include a

policy statement that military service is a discouraged factor when

considering    whether    a   downward    departure     is    warranted.     See

U.S.S.G. § 5H1.11 (“Military, civic, charitable, or public service

. . . and similar prior good works are not ordinarily relevant in

determining whether a departure is warranted”); see also United

States v. Rybicki, 

, 759 (4th Cir. 1996) (“Rybicki’s 20

years   of    unblemished     service    to   the    United   States   and   his

responsibilities to his son and wife, both of whom have medical

problems, are also factors that the Sentencing Guidelines have

expressly addressed, instructing that they are ordinarily not

relevant and therefore ‘discouraged’”).             Section 3553(a) expressly

directs sentencing courts to consider such policy statements.                See

18   U.S.C.    §   3553(a)(5)(A)    (“The     court,    in    determining    the

particular sentence to be imposed, shall consider . . . any

pertinent policy statement issued by the Sentencing Commission”).


                                        -5-
     Third, the district court misapplied the sentencing factors

found in § 3553(a) in its efforts to justify Medina’s sentence,

thereby undermining the stated purposes for sentencing.                The

district court believed that “one of the things that we can do to

promote respect for the law is to have the law recognize that

people who make positive and significant contributions to their

country’s welfare should have that considered in the sentencing

process.”    This reasoning flips the “promote respect for the law”

factor on its head.        “[T]he need for the sentence imposed to

reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense,” see 18 U.S.C.

§ 3553(a)(2)(A), is furthered by ensuring that there are adequate

consequences for violating the law, not by rewarding prior good

works that are unrelated to the law that was violated.         Instead of

sufficiently punishing criminal behavior, and thereby promoting

respect     for   the   law,   Medina’s   sentence   demotes    the    law

criminalizing the possession of child pornography in favor of

rewarding and encouraging military service.          This reflects an

erroneous understanding of § 3553(a)(2)(A).

     Fourth, the district court also believed that Medina’s one-

year sentence was “no more than that necessary to foster the other

goals of sentencing, including such things as deterrence.”            This

conclusory statement is not a satisfactory substitute for an

explanation of why Medina’s reduced sentence satisfies “the need


                                   -6-
for the sentence imposed . . . to afford adequate deterrence to

criminal conduct.”         See 18 U.S.C. § 3553(a)(2)(B).               Congress and

the Sentencing Commission expressed the judgment, albeit now only

recommended, that a sentence of 41 to 51 months would afford

adequate deterrence of offenses such as that committed by Medina.

The   district     court    thus   had   a   responsibility        to   explain    why

Medina’s 12-month sentence would better serve as a deterrence.

Medina’s sentence, as it now stands, conflicts with the Guidelines’

judgment    on     the     adequate    level    of    deterrence        without    any

explanation why, other than the fact that Medina served in the

military.     We see no improvement in deterrence by reducing a

sentence for military service.

      Fifth and finally, we conclude that the district court must

have more compelling reasons than a discouraged factor to reduce a

sentence    nine    levels    --   a   sentence      70%   below   the    Sentencing

Guidelines’ minimum recommended sentence.                   As we have held, a

variance of this size must be justified by compelling reasons

related to factors found in § 3553(a).               See 

(“The farther the court diverges from the advisory guideline

range, the more compelling the reasons for the divergence must

be”).   Instead of providing such compelling reasons based in §

3553(a),    the    district     court’s      explanation     actually      tends   to

undermine the factors found therein.

                                                            VACATED AND REMANDED


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