Criminal Practice – Upward Departure – Sentencing Guidelines Are Advisory

Even if the district court erred in departing upward under the Guidelines, the same sentence was independently justified and reasonable as a variance based on the §3553(a) factors.

We affirmed Defendant’s 720-month sentence.

In 2020, Defendant committed a series of violent crimes while on post-release supervision for prior state felonies involving firearms and assaults on police officers. Using an AR-style rifle, Defendant shot a police officer responding to a residential 911 call and fled on foot with the weapon. The following morning, he confronted a stranger entering a truck and demanded the victim’s keys and phone. Before the victim could comply, Defendant shot him three times, causing serious bodily injury. Defendant then stole the truck and fled. He was arrested the next day after again pointing his rifle at police officers during another confrontation.

Defendant pleaded guilty to three federal offenses: possession of a firearm by a convicted felon, carjacking resulting in serious bodily injury, and discharging a firearm in furtherance of a crime of violence. The third count alone authorized a sentence of up to life imprisonment under 18 U.S.C. §924(c). At sentencing, the district court calculated an advisory Guidelines range of 360 to 420 months for the first two counts, plus a mandatory consecutive sentence of at least 120 months for the firearm-discharge count. Defendant’s counsel did not object to these calculations. The district court ultimately imposed a total sentence of 720 months (60 years) of imprisonment.

The district court offered two independent justifications for the sentence. First, it concluded an upward departure was warranted under several provisions of the Sentencing Guidelines. Second, and alternatively, the court stated that even if the departure were improper, it would impose the same sentence as a variance based solely on the factors set forth in 18 U.S.C. §3553(a), finding the sentence “sufficient but not greater than necessary” in light of Defendant’s conduct and history.

On appeal, Defendant argued the upward departure was erroneous because the factors relied upon were already accounted for in the Guidelines range. The Court found it unnecessary to resolve that issue because the district court had clearly and unequivocally stated it would have imposed the same sentence as a variance under §3553(a). The Court emphasized that the Sentencing Guidelines are advisory and district courts have broad discretion to impose non-Guidelines sentences when justified by statutory sentencing factors. Appellate review of such sentences is deferential and conducted under an abuse-of-discretion standard.

The Court concluded that Defendant’s sentence was procedurally and substantively reasonable. Defendant had forfeited any challenge to the Guidelines calculation, and the district court had provided the parties an opportunity to be heard, explained its reasoning in detail, and conducted a thorough individualized assessment. Although the 720-month sentence represented a substantial upward variance from the advisory range, the district court adequately justified it by emphasizing the extraordinary seriousness of the offenses, Defendant’s repeated failures under supervision, the need to protect the public, and the goal of deterrence, while also acknowledging mitigating factors such as his guilty plea.

Affirmed.

U.S. v Strother (Lawyers Weekly No. 001-220-25, 10 pp.) (Toby Heytens, J.) Appealed from the U.S. District Court for the Eastern District of North Carolina, at Greenville (James C. Dever III, J.) ARGUED: Ryan M. Prescott, PRESCOTT LAW, PLLC, Winterville, Georgia, for Appellant. Sarah Elizabeth Nokes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit Unpublished