UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4497



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.


DEMETRIUS TERRY MEARES,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Terrence W. Boyle,
District Judge. (7:06-cr-00108-BO)


Submitted:    July 17, 2008                 Decided:   August 14, 2008


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Demetrius Terry Meares pled guilty pursuant to a written

plea agreement to armed bank robbery (“Count One”) and brandishing

a firearm during and in relation to a crime of violence (“Count

Two”), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii); 2113(a), (d)

(2000).       Meares    was       sentenced      to   a   total    of    300    months’

imprisonment.    He challenges this sentence on appeal.

          As to the armed bank robbery offense charged in Count

One, the Presentence Investigation Report recommended an adjusted

offense level of twenty and a criminal history category of V,

thereby resulting in an advisory guideline range of 63 to 78

months’ imprisonment. See U.S. Sentencing Guidelines Manual Ch. 5,

Pt. A (2006) (sentencing table).                   As to the firearms offense

charged in Count Two, Meares’s advisory guideline sentence was the

minimum term of imprisonment required by statute, or eighty-four

months.    See     USSG       §    2K2.4(b)      (2006);     see   also    18    U.S.C.

§ 924(c)(1)(A)(ii).

          Meares       agreed      with    the    contents    of   the    presentence

report, including the details surrounding a second armed bank

robbery that was charged in Count Three, but dismissed pursuant to

the terms of the plea agreement.                  The district court, however,

determined that an additional two-level increase was warranted

under USSG § 3A1.1 (2006) (vulnerable victim enhancement) because

Meares took a woman in her fifties hostage during the second armed


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bank robbery.     Meares’s counsel argued against the enhancement,

stating   the   purpose    of    §   3A1.1      was   to   punish      offenders   who

intentionally chose victims based on an immutable characteristic,

such as race.     The court disagreed with counsel’s argument, and

applied the enhancement.             Consequently, the advisory guideline

range for Count One, based on an adjusted offense level of twenty-

two and a criminal history category of V, was 77 to 96 months.

            Because     the     facts    surrounding        the     robberies      were

egregious, the court determined that a sentence above the advisory

guideline range was warranted.             Pursuant to USSG § 5K2.21 (2006),

the court calculated an upward departure range based on the facts

surrounding the dismissed count, including the fact that the second

armed bank robbery involved a “vulnerable victim.” Since the court

concluded that the departure guideline range was still “inadequate

to accurately reflect the planning and consummation of these

crimes,” it imposed a variance sentence totaling 300 months’

imprisonment,    which    included       180    months     on     Count   One   and   a

consecutive term of 120 months on Count Two.

            Meares challenges the district court’s application of the

Sentencing Guidelines on appeal.             He specifically argues that the

court impermissibly double counted the conduct in the dismissed

count by using it as the basis for application of a vulnerable

victim    enhancement     during     its    determination         of   the   advisory

guideline range as well as for an upward departure under § 5K2.21.


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The Government concedes that the district court impermissibly

double counted.            Additionally, the Government notes that the

court’s   application         of       the    vulnerable       victim     enhancement    in

calculating the advisory guideline range was likewise erroneous as

it was based on conduct unrelated to the crimes for which Meares

pled guilty.

             When determining a sentence, the district court must

calculate the appropriate advisory guideline range and consider it

in conjunction with the factors set forth in 18 U.S.C. § 3553(a)

(2000).     Gall v. United States, 

, 596 (2007).                           In

reviewing    the     district          court’s   application         of   the   Sentencing

Guidelines,    we        review    findings       of    fact    for     clear   error   and

questions of law de novo.                United States v. Green, 

,

456 (4th Cir. 2006).               Appellate review of a district court’s

imposition    of     a    sentence,          “whether    inside,      just   outside,    or

significantly outside the Guidelines range,” is for abuse of

discretion.    

.

             “Double       counting          occurs     when    a     provision   of    the

Guidelines is applied to increase punishment on the basis of a

consideration that had been accounted for by application of another

Guideline provision or by application of a statute.”                                United

States v. Reevey, 

, 158 (4th Cir. 2004).                                Unless

expressly     prohibited          by    the     Guidelines,         double   counting    is

permitted.     

case in § 5K2.21, which recognizes


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that a court may “depart upward to reflect the actual seriousness

of the offense based on conduct . . . underlying a charge dismissed

as part of a plea agreement,” but requires that the conduct at

issue   may    not      have    “enter[ed]    into    the     determination     of   the

applicable guideline range.”               USSG § 5K2.21.

              The    district      court    indisputably       used     the   dismissed

conduct in Count Three to both calculate the advisory guideline

range and depart upward under § 5K2.21.                      As this form of double

counting      is    expressly      prohibited       by   §    5K2.21,    the    court’s

application        of   the     Guidelines    was    erroneous.         Moreover,    as

commendably noted by the Government, the court’s application of the

vulnerable victim enhancement in initially determining Meares’s

advisory guideline range was likewise erroneous as the conduct

underlying the enhancement was unrelated to the charges for which

Meares pled guilty.            Consequently, Meares’s sentence, which is the

result of significant procedural error, is unreasonable.                             See

United States v. Evans, 

, 160-62, 164 (4th Cir. 2008).

We therefore vacate Meares’s sentence and remand for resentencing.

              On remand, the district court should first determine the

appropriate sentencing range under the Guidelines, making all

factual findings appropriate for the determination. 

court should consider this sentencing range along with the

other factors described in 18 U.S.C. § 3553(a) and then impose a

sentence.          

that sentence falls outside the


                                           - 5 -
Guidelines range, the court should articulate its reasons for the

departure or variance with respect to each count.     

indicate no view as to the appropriate sentence to be

imposed upon Meares, leaving that determination, in the first

instance, to the district court.

          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




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