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No. 13-4635
No. 13-4636
No. 13-4650
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; 5:12cr-00336-BO-2)
Argued:
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
WYNN
and
HARRIS,
Circuit
challenge
reasonableness
both
of
the
their
procedural
sentences.
We
and
substantive
conclude
that
the
rejection
of
the
Guidelines
sentences
or
to
offer
an
We
occurred
over
four-day
period
in
Fayetteville,
North
caliber handguns.
Lymas entered the store wearing dark clothing, ski masks and
gloves.
Gomez demanded
money from the store clerk and knocked the clerk on the back of
the head with the butt of his handgun. 1
The appellants
however,
was
not
finished
juvenile
accomplice
to
for
help
the
him
day,
rob
and
he
Kangaroo
Upon
Lymas and
On
Gomezs
October
home
30,
to
participate.
2011,
plan
Morales
Gomez,
another
drove
Lymas
and
Morales
robbery.
Gomez
and
Newman
Lymas
to
met
did
not
different
and
Lymas
As
it
were
turned
carrying
out,
handguns
the
police
as
they
had
the
at
Both
entered
store
the
under
Newman
Count
Six,
see
18
U.S.C.
924(c)(1)(A)
(Count
Seven).
each
pled
guilty
to
Counts
One
(Hobbs
Act
The
Lymas,
the
presentence
report
(PSR)
recommended
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 Newmans total offense level to be 26,
which
reflected
responsibility
a
but
three-level
a
sixlevel
6
reduction
for
enhancement
acceptance
for
pointing
of
a
Mills
Kangaroo
Express.
With
category
criminal
Fayetteville
street
gang;
authorities
only
three-point
acceptance-of-responsibility
reduction;
The
with
an
offense
level
of
27,
yielded
an
advisory
reviewed the crimes with Lymas and asked him several questions
regarding
denied.
membership
in
the
Crips
street
gang,
which
Lymas
nature
of
the
crimes
7
and
the
fact
that
Lymas
Newman,
Gomez
and
Morales,
which
were
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.
Gomezs
indicated
subsequent
it
was
sentencing
hearing,
incorporat[ing]
our
the
3553(a)
district
factors
the
danger
to
society,
and
that
[Gomez]
needs
to
be
J.A. 141.
Gomezs
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 Ive 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.
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
and
substantive
outside,
or
Gall v. United
components.
United
States
v.
First, we must
argue
that
Id.
the
district
court
committed
We are constrained to
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)).
consider
range,
numerous
the
nature
and
such
as
the
circumstances
Guidelines
of
the
sentencing
offense,
the
States,
551
U.S.
338,
350
(2007).
Of
Rita v.
course,
the
the
heartland
to
which
11
the
Commission
intends
individual
Guidelines
to
apply,
or
perhaps
because
the
or
because
regardless.
the
Id.
case
at
warrants
351;
see
United
different
States
v.
A district
case
is
entitled
to
the
greatest
respect.
order when the sentencing judge varies from the Guidelines based
solely
on
the
judges
view
that
the
Guidelines
range
fails
Here,
variance
the
was
district
required
court
because
effectively
the
robbery
concluded
guideline
that
did
a
not
in
each
case,
the
district
courts
only
stated
justification for varying from the Guidelines range was that the
applicable
guideline
fail[s]
to
take
into
account
the
[and]
grossly
under
punish[es]
J.A. 134.
and
grossly
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.
Sentencing
Commissions
considered
judgment
as
to
the
in
503
(4th
Cir.
sentencing,
which
match[es]
2003).
While
this
sort
of
wholesale
require
significantly
more
detailed
explanation
than
addition
Guidelines,
explain
the
the
to
failing
district
sentences
to
explain
court
also
imposed.
its
rejection
failed
to
district
of
the
sufficiently
court
commits
of
defendants
sentence
with
an
individualized
rationale.
Cir. 2009).
assessment
sentence,
based
on
the
facts
presented
apply[ing]
the
relevant
when
3553(a)
imposing
factors
to
a
the
in
open
court
the
particular
13
reasons
supporting
its
chosen
sentence.
Id.
at
328
(internal
quotation
marks
omitted).
need
be
not
individualized
lengthy,
but
assessment
the
court
justifying
the
must
sentence
offer
some
imposed
and
United States v. Lynn, 592 F.3d 572, 584 (4th Cir. 2010)
(internal
quotation
marks
omitted).
The
sentencing
courts
and
adequate
to
permit
meaningful
appellate
review.
In
Thus,
district
essentially
court
ignored
sentenced
individual defendants.
the
every
crime
other
statutory
itself
rather
factor
and
than
the
that
the
defendants,
as
detailed
in
the
PSR,
engaged
in
store
clerk,
unlike
and
Newman.
Newman,
however,
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
explain
criminal
why
histories.
these
The
differences
district
would
not
court
failed
warrant
to
different
sentences.
We conclude that the reasons offered by the district court
to
justify
the
individualized
sentences
such
that
were
we
not
sufficiently
can
conclude
detailed
that
the
or
court
study
sometimes
in
the
magnify,
human
the
failings
crime
and
that
the
sometimes
punishment
mitigate,
to
ensue.
140
months
for
any
other particulars.
avoid
unwarranted
defendant
involved
without
regard
to
any
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
offense
conduct
of
Lymas,
Newman
and
Gomez
and
instead
16