Filed: Mar. 18, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4635 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. XAVIER DESHAWN LYMAS, Defendant - Appellant. No. 13-4636 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LIONEL BERNARD NEWMAN, a/k/a Mooky, Defendant - Appellant. No. 13-4650 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSIE GOMEZ, a/k/a Jesus, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4635 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. XAVIER DESHAWN LYMAS, Defendant - Appellant. No. 13-4636 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LIONEL BERNARD NEWMAN, a/k/a Mooky, Defendant - Appellant. No. 13-4650 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSIE GOMEZ, a/k/a Jesus, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4635
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XAVIER DESHAWN LYMAS,
Defendant - Appellant.
No. 13-4636
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LIONEL BERNARD NEWMAN, a/k/a Mooky,
Defendant - Appellant.
No. 13-4650
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESSIE GOMEZ, a/k/a Jesus,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-cr-00336-BO-1; 5:12-cr-00336-BO-3; 5:12-
cr-00336-BO-2)
Argued: December 11, 2014 Decided: March 18, 2015
Before TRAXLER, Chief Judge, and WYNN and HARRIS, Circuit
Judges.
Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Wynn and Judge Harris joined.
ARGUED: Terry F. Rose, Smithfield, North Carolina; G. Alan
DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellants. Shailika S. Kotiya, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant Lymas. Brett Wentz, WENTZ LAW, PLLC, Wilmington,
North Carolina, for Appellant Gomez. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
2
TRAXLER, Chief Judge:
Appellants Xavier D. Lymas, Lionel B. Newman and Jessie
Gomez challenge both the procedural and substantive
reasonableness of their sentences. We conclude that the
district court committed procedural error by failing to explain
its rejection of the Guidelines sentences or to offer an
individualized assessment to justify each appellant’s sentence
based on the particular facts of the case before the court. We
therefore vacate and remand for resentencing.
I.
A.
This appeal arises from a convenience-store-robbery spree
that occurred over a four-day period in Fayetteville, North
Carolina, in the fall of 2011. In need of rent money, Gomez
enlisted the participation of Lymas and Jose Morales to help him
commit a robbery. Morales recruited Newman and obtained two .38
caliber handguns. On October 27, 2011, the four men gathered at
Gomez’s home and decided to rob a Short Stop convenience store.
Morales drove the appellants to the scene; Lymas and Gomez were
armed. When the group arrived, however, the store was crowded
and they decided to abort the robbery.
Later that day, having been forced to abandon their initial
target, the group decided to hit a different convenience store.
Morales dropped off Gomez, Newman and Lymas behind the Kangaroo
3
Express on Natal Street in Fayetteville and then observed the
store from a distance. On Morales’s signal, Gomez, Newman and
Lymas entered the store wearing dark clothing, ski masks and
gloves. This time, Gomez and Newman were armed. Gomez demanded
money from the store clerk and knocked the clerk on the back of
the head with the butt of his handgun. 1 Lymas, who was not
armed, grabbed $108.48 from the cash register as well as some
lighters and cigar wrappers from the counter. The appellants
then escaped in Morales’s car.
Newman, however, was not finished for the day, and he
recruited a juvenile accomplice to help him rob a Kangaroo
Express located in Hope Mills, North Carolina. Newman and the
juvenile accomplice were both wearing ski masks, hoodies, and
gloves, and they were carrying the handguns obtained by Morales
and used in the earlier robbery. Before entering the store, the
juvenile indicated he intended to shoot the store clerk. Upon
entering the store, however, Newman sent his juvenile accomplice
back to the coolers to take some beer while Newman pointed his
gun at the clerk and took money from the register. Lymas and
Gomez played no part in this robbery.
1
Although the store clerk was sent to the hospital for
evaluation, he later indicated it was not a significant blow and
compared it to being hit on the head with a textbook.
4
On October 30, 2011, Gomez, Lymas and Morales met at
Gomez’s home to plan another robbery. Newman did not
participate. Morales drove Gomez and Lymas to a different
Kangaroo Express convenience store located in Hope Mills. Both
Gomez and Lymas were carrying handguns as they entered the
store. As it turned out, the police had the store under
observation and arrested Gomez and Lymas immediately. Newman
and Morales were arrested later.
All three appellants, along with Morales, were named in an
eight-count indictment. All three appellants were charged with
conspiracy to commit a Hobbs Act robbery, see 18 U.S.C. § 1951
(Count One) 2; commission of a Hobbs Act robbery of the Natal
Street Kangaroo Express on October 27, 2011, see 18 U.S.C. §
1951 (Count Two); and using and carrying a firearm during and in
relation to a crime of violence, namely the robbery charged in
Count Two, see 18 U.S.C. § 924(c)(1)(A) (Count Three).
Newman was charged separately with commission of a Hobbs
Act robbery of a Hope Mills Kangaroo Express on October 27,
2011, see 18 U.S.C. § 1951 (Count Four); and using and carrying
a firearm during and in relation to a crime of violence, namely
the Hope Mills Kangaroo Express robbery charged in Count Four,
2
The indictment alleged as overt acts in furtherance of the
conspiracy the two robberies and the aborted robbery on October
27, 2011, as well as the attempted robbery on October 30, 2011.
5
see 18 U.S.C. § 924(c)(1)(A) (Count Five). Lymas and Gomez were
separately charged with an October 30, 2011, Hobbs Act robbery
stemming from their attempted robbery of a second Hope Mills
Kangaroo Express, see 18 U.S.C. § 1951 (Count Six); and using
and carrying a firearm during and in relation to a crime of
violence, namely the attempted October 30, 2011, robbery charged
in Count Six, see 18 U.S.C. § 924(c)(1)(A) (Count Seven).
Finally, Lymas alone was charged with unlawful possession of a
firearm by a convicted felon, see 18 U.S.C. §§ 922(g)(1) (Count
Eight).
Appellants each pled guilty to Counts One (Hobbs Act
Conspiracy) and Three (using and carrying a firearm during and
in relation to a crime of violence) of the indictment. The
government dismissed the remaining counts as to each appellant.
B.
For Lymas, the presentence report (“PSR”) recommended a
three-point downward adjustment for acceptance of responsibility
for a total offense level of 25 and scored Lymas with a criminal
history category of II. Lymas’s resulting advisory sentencing
range was 63-78 months, plus a consecutive 60-month term for the
using and carrying conviction under § 924(c)(1)(A).
The PSR calculated Newman’s total offense level to be 26,
which reflected a three-level reduction for acceptance of
responsibility but a six–level enhancement for pointing a
6
firearm at the store clerk during the October 27 robbery of the
Hope Mills Kangaroo Express. With a category V criminal
history, Newman faced an advisory sentencing range of 110-137
months, as well as the consecutive 60-month using-and-carrying
term. The PSR indicated that Newman was a member of the Tangle
Wood Cartel, a Fayetteville street gang; authorities only
suspected Gomez and Lymas were affiliated as well.
Finally, for Gomez, the PSR determined his total offense
level to be a 27. Gomez, like his co-defendants, was credited
with a three-point acceptance-of-responsibility reduction;
however, the PSR recommended imposing a two-level enhancement
because Gomez played a leadership role in the conspiracy. The
PSR placed Gomez in criminal history category IV, which, when
paired with an offense level of 27, yielded an advisory
sentencing range of 100-125 months. Gomez was also subject to
the consecutive 60-month § 924(c) term.
Lymas appeared first for sentencing. The district court
reviewed the crimes with Lymas and asked him several questions
regarding membership in the Crips street gang, which Lymas
denied. Counsel for Lymas highlighted the fact that he was not
an organizer or leader and requested a sentence at the low end
of the 63- to 78-month advisory range. The government requested
a sentence at the high end of the guideline range based on the
violent nature of the crimes and the fact that Lymas
7
participated in two robberies from October 27 to October 30,
2011. Before imposing sentence on Lymas, the district court
asked the government attorney about the sentencing ranges for
co-defendants Newman, Gomez and Morales, which were
significantly higher than Lymas’s range as a result of their
higher criminal history scores. The district court then stated,
[T]his is one of the fallacies of guideline sentencing
that in reality, in justice, in fairness and in truth,
these four people should receive the same sentence and
should be punished equally across the board for what
they did. And the ostrich approach of sticking your
head in the sand that the guidelines champion would
allow vast disparity in punishment and inequality and
it’s a great example of the irrationality of guideline
sentencing and why it’s a failed exercise.
I’m very much of the opinion that I ought to
sentence each one of these four to a minimum of 120
months on the first count, on the robbery, and then
60. So, 15 years.
J.A. 131-32. The court opined that the advisory sentencing
ranges for all of the defendants “fail to take into account the
seriousness and the danger and the repetitive quality of these
crimes . . . [and] grossly under punish and grossly ignore the
dangers of the crimes.” J.A. 134. The district court then
imposed an upward variance of 62 months for a 140-month sentence
for Lymas on Count One and a mandatory, consecutive 60-month
term on Count Three, for a combined sentence of 200 months.
At Gomez’s subsequent sentencing hearing, the district
court indicated it was “incorporat[ing] our 3553(a) factors
8
stated in the previous sentencing [for Lymas]” and again found
that “the guideline range underrepresents the seriousness of the
crime, the danger to society, and that [Gomez] needs to be
sentenced at a higher level in order to punish the crime and
protect the community.” J.A. 141. Just as it had for Lymas,
the district court sentenced Gomez to 140 months on Count One,
which amounted to an upward variance of 15 months. Gomez’s
total sentence was 200 months, which included the 60-month term
for the § 924(c) violation charged in Count Three.
Finally, the district court imposed an identical sentence
of 140 months on Count One for Newman as well, which reflected
an upward variance of three months,
based on the conclusions that I’ve reached about the
violence of this crime, the pistol whipping of the
victim, the threat to society, the random introduction
of violence into a commercial setting.
All of these things are underrepresented by the
guideline calculation and a sentence of 140 months
given his criminal history and the recidivism and the
danger that he presents is a fair, just and necessary
sentence . . . .
J.A. 145-46. This sentence, plus the 60-month term for using
and carrying in violation of § 924(c), yielded the same total
term of imprisonment for Newman as for his co-defendants--200
months.
9
II.
We review the reasonableness of a sentence under 18 U.S.C.
§ 3553(a) using an abuse-of-discretion standard, regardless of
“whether [the sentence is] inside, just outside, or
significantly outside the Guidelines range.” Gall v. United
States, 552 U.S. 38, 41 (2007). “Our reasonableness review has
procedural and substantive components.” United States v.
Boulware,
604 F.3d 832, 837 (4th Cir. 2010). First, we must
determine whether the district court committed any procedural
error,
such as 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.
Gall, 552 U.S. at 51. Only if we determine that the district
court has not committed procedural error do we proceed to assess
“the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.”
Id.
Appellants argue that the district court committed
procedural error because it offered no individualized rationale
to justify the sentences it imposed. We are constrained to
agree. Because we conclude that the sentences were procedurally
unreasonable, we address only the procedural component in this
case.
10
A.
Section 3553
contains an overarching provision instructing district
courts to “impose a sentence sufficient, but not
greater than necessary,” to accomplish the goals of
sentencing, including “to reflect the seriousness of
the offense,” “to promote respect for the law,” “to
provide just punishment for the offense,” “to afford
adequate deterrence to criminal conduct,” and “to
protect the public from further crimes of the
defendant.”
Kimbrough v. United States, 552 U.S. 85, 101 (2007) (quoting 18
U.S.C. § 3553(a)). The statute requires a sentencing court to
consider numerous factors, such as the Guidelines sentencing
range, “the nature and circumstances of the offense,” “the
history and characteristics of the defendant,” “any pertinent
policy statement” from the Sentencing Commission, and “the need
to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
18 U.S.C. § 3553(a); see
Kimbrough, 552 U.S. at 101.
In a typical case, a guidelines sentencing range embodies
the § 3553(a) factors and “reflect[s] a rough approximation of
sentences that might achieve § 3553(a)’s objectives.” Rita v.
United States, 551 U.S. 338, 350 (2007). Of course, the
sentencing court “may hear arguments by prosecution or defense
that the Guidelines sentence should not apply, perhaps because
(as the Guidelines themselves foresee) the case at hand falls
outside the ‘heartland’ to which the Commission intends
11
individual Guidelines to apply,” or “perhaps because the
Guidelines sentence itself fails properly to reflect § 3553(a)
considerations” or “because the case warrants a different
sentence regardless.” Id. at 351; see United States v.
Diosdado-Star,
630 F.3d 359, 364 (4th Cir. 2011). A district
court’s decision to vary from the Guidelines for an outside-the-
heartland case is entitled to the “greatest respect.”
Kimbrough, 552 U.S. at 109. However, “closer review may be in
order when the sentencing judge varies from the Guidelines based
solely on the judge’s view that the Guidelines range fails
properly to reflect § 3553(a) considerations even in a mine-run
case.”
Id. (internal quotation marks omitted).
Here, the district court effectively concluded that a
variance was required because the robbery guideline did not
reflect the § 3553(a) objectives. The district court, however,
failed to sufficiently explain why it rejected the guideline.
Indeed, in each case, the district court’s only stated
justification for varying from the Guidelines range was that the
applicable guideline “fail[s] to take into account the
seriousness and the danger and the repetitive quality of these
crimes . . . [and] grossly under punish[es] and grossly
ignore[s] the dangers of the crimes.” J.A. 134. In determining
how great a variance was required, the court stated that there
should be no disparity between the defendants’ sentences and
12
that “[the defendants] should receive the same sentence and
should be punished equally across the board for what they did.”
J.A. 131. The district court therefore not only rejected the
Sentencing Commission’s considered judgment as to the
appropriate sentence for the crimes at issue here, but it also
rejected one of the foundational principles of the Guidelines
themselves--proportionality in sentencing, which “match[es]
punishment with culpability.” United States v. Miller, 316 F.3d
495, 503 (4th Cir. 2003). While this sort of wholesale
rejection of the Guidelines might be permissible post-Booker, it
would require a significantly more detailed explanation than
given by the district court here.
B.
In addition to failing to explain its rejection of the
Guidelines, the district court also failed to sufficiently
explain the sentences imposed. A district court commits
procedural error requiring remand when it fails to justify an
aspect of a defendant’s sentence “with an individualized
rationale.” United States v. Carter, 564 F.3d 325, 328-29 (4th
Cir. 2009). The sentencing court “must make an individualized
assessment based on the facts presented” when imposing a
sentence, “apply[ing] the relevant § 3553(a) factors to the
specific circumstances of the case” and the defendant, and must
“state in open court the particular reasons supporting its
13
chosen sentence.” Id. at 328 (internal quotation marks
omitted). “[A] district court’s explanation of its sentence
need not be lengthy, but the court must offer some
individualized assessment justifying the sentence imposed and
rejection of arguments for a higher or lower sentence based on §
3553.” United States v. Lynn,
592 F.3d 572, 584 (4th Cir. 2010)
(internal quotation marks omitted). The sentencing court’s
stated rationale must be “tailored to the particular case at
hand and adequate to permit meaningful appellate review.”
Carter, 564 F.3d at 330 (internal quotation marks omitted). In
imposing a variance sentence, the district court “must consider
the extent of the deviation and ensure that the justification is
significantly compelling to support the degree of the variance.
. . . [I]t [is] uncontroversial that a major departure should be
supported by a more significant justification than a minor one.”
Gall, 552 U.S. at 50.
In this case, the district court provided the opposite of
individualized sentences and explanations. As noted above, the
court determined that the Guideline underpunished the crime and
that each defendant should receive the same sentence. Thus,
except for offering its view of the seriousness of the offense,
the district court ignored every other statutory factor and
essentially sentenced the crime itself rather than the
individual defendants. For example, the court ignored the fact
14
that the defendants, as detailed in the PSR, engaged in
different conduct and played different roles during the robbery
spree. Lymas, who received a 62-month upward variance, was not
armed during the two robberies he participated in, in contrast
to Gomez and Newman, who were armed in each of the robberies in
which they participated. Lymas also did not point a handgun at
a store clerk, unlike Gomez and Newman. Newman, however,
involved a juvenile as an accomplice in one of the robberies,
which is not something that Lymas or Gomez did. Of course,
Gomez was the leader of the group and struck a store clerk with
the butt of his pistol; Lymas and Newman were not leaders. And
as also spelled out in the PSR, the defendants each had very
different criminal histories. The district court failed to
explain why these differences would not warrant different
sentences.
We conclude that the reasons offered by the district court
to justify the sentences were not sufficiently detailed or
individualized such that we can conclude that the court
considered each defendant “as an individual and [his] case as a
unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.”
Gall, 552 U.S. at 52 (internal quotation marks omitted);
Carter,
564 F.3d at 328. As noted previously, the district court simply
determined that this particular crime warranted a sentence of
15
140 months for any defendant involved without regard to any
other particulars. A sentencing court can consider “the need to
avoid unwarranted sentence disparities among defendants,” but
only where the defendants have “similar records” and “have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The
court failed to account for the dissimilar criminal histories
and offense conduct of Lymas, Newman and Gomez and instead
adopted a cookie-cutter approach that is the antithesis of our
individualized sentencing process.
III.
Accordingly, we vacate the sentences for Lymas, Newman and
Gomez, and we remand for resentencing.
VACATED AND REMANDED
16
