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    United States v. Diane Hutchison, 4th Cir. (2013)

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    The United States Court of Appeals for the Fourth Circuit vacated Diane Hutchison's 21-month sentence for wire fraud and remanded the case for resentencing. The court found that the district court procedurally erred by failing to address Hutchison's arguments against an upward departure in her criminal history category. The court also relied on an inaccurate factual premise that Hutchison had repeated opportunities for rehabilitation from her prior embezzlement convictions, which were actually part of a single scheme. As the district court erred in its characterization of Hutchison's criminal history and did not properly address her arguments, the Fourth Circuit vacated the sentence and remanded the case for resentencing.

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    United States v. Diane Hutchison, 4th Cir. (2013)

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    Scribd Government Docs
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    The United States Court of Appeals for the Fourth Circuit vacated Diane Hutchison's 21-month sentence for wire fraud and remanded the case for resentencing. The court found that the district court procedurally erred by failing to address Hutchison's arguments against an upward departure in her criminal history category. The court also relied on an inaccurate factual premise that Hutchison had repeated opportunities for rehabilitation from her prior embezzlement convictions, which were actually part of a single scheme. As the district court erred in its characterization of Hutchison's criminal history and did not properly address her arguments, the Fourth Circuit vacated the sentence and remanded the case for resentencing.

    Original Description:

    Filed: 2013-11-06 Precedential Status: Non-Precedential Docket: 13-4250

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    The United States Court of Appeals for the Fourth Circuit vacated Diane Hutchison's 21-month sentence for wire fraud and remanded the case for resentencing. The court found that the district court procedurally erred by failing to address Hutchison's arguments against an upward departure in her criminal history category. The court also relied on an inaccurate factual premise that Hutchison had repeated opportunities for rehabilitation from her prior embezzlement convictions, which were actually part of a single scheme. As the district court erred in its characterization of Hutchison's criminal history and did not properly address her arguments, the Fourth Circuit vacated the sentence and remanded the case for resentencing.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    36 views5 pages

    United States v. Diane Hutchison, 4th Cir. (2013)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit vacated Diane Hutchison's 21-month sentence for wire fraud and remanded the case for resentencing. The court found that the district court procedurally erred by failing to address Hutchison's arguments against an upward departure in her criminal history category. The court also relied on an inaccurate factual premise that Hutchison had repeated opportunities for rehabilitation from her prior embezzlement convictions, which were actually part of a single scheme. As the district court erred in its characterization of Hutchison's criminal history and did not properly address her arguments, the Fourth Circuit vacated the sentence and remanded the case for resentencing.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 13-4250

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    DIANE CONWAY HUTCHISON,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Asheville. Martin K. Reidinger,
    District Judge. (1:12-cr-00004-MR-DLH-1)

    Submitted:

    October 23, 2013

    Decided:

    November 6, 2013

    Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.

    Vacated and remanded by unpublished per curiam opinion.

    Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL


    DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
    Carolina, for Appellant.
    Anne M. Tompkins, United States
    Attorney, Melissa L. Rikard, Assistant United States Attorney,
    Charlotte, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Diane

    Conway

    Hutchison

    appeals

    the

    twenty-one

    month

    sentence imposed after she pled guilty to one count of wire


    fraud, in violation of 18 U.S.C. 1343 (2006).

    The district

    court imposed this sentence after departing upward one criminal


    history category pursuant to U.S. Sentencing Guidelines Manual
    (USSG) 4A1.3 (2012), based on its conclusion that Hutchisons
    criminal

    history

    category

    criminal conduct.

    of

    underrepresented

    her

    prior

    Hutchison argues on appeal that the district

    court procedurally erred in failing to address her arguments


    against the departure and substantively erred in relying on an
    inaccurate

    factual

    conclude

    that

    premise

    to

    Hutchisons

    support

    claims

    the

    are

    departure.

    We

    meritorious,

    and

    accordingly vacate her sentence and remand for resentencing.


    We review a sentence for procedural and substantive
    reasonableness under an abuse of discretion standard.
    United

    States,

    applies

    552

    whether

    U.S.

    the

    38,

    51

    sentence

    (2007).

    is

    The

    inside,

    same

    just

    Gall v.
    standard

    outside,

    or

    significantly outside the Guidelines range.

    United States v.

    Rivera-Santana,

    Cir.)

    668

    F.3d

    95,

    100-01

    (4th

    (internal

    citation and quotation marks omitted), cert. denied, 133 S. Ct.


    274

    (2012).

    consider

    In

    whether

    defendants

    determining
    the

    advisory

    procedural

    district

    court

    Guidelines
    2

    reasonableness,

    properly

    range,

    gave

    calculated
    the

    parties

    we
    the
    an

    opportunity to argue for an appropriate sentence, considered the


    18 U.S.C. 3553(a) (2006) factors, selected a sentence based on
    clearly erroneous facts, and sufficiently explained the selected
    sentence.

    Gall, 552 U.S. at 49-51.

    In reviewing any sentence

    outside the Guidelines range, the appellate court must give due
    deference

    to

    the

    sentencing

    courts

    decision

    because

    it

    has

    flexibility in fashioning a sentence outside of the Guidelines


    range, and need only set forth enough to satisfy the appellate
    court that it has considered the parties arguments and has a
    reasoned basis for its decision.

    United States v. Diosdado-

    Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Gall, 552 U.S.
    at 56); see also United States v. Carter, 564 F.3d 325, 328 (4th
    Cir.

    2009)

    (sentencing

    court

    must

    make

    an

    individualized

    assessment based on the facts presented) (citation and emphasis


    omitted).
    Hutchison

    first

    contends

    that

    the

    district

    court

    failed to comply with the mandate of Gall and United States v.


    Lynn, 592 F.3d 572, 581 (4th Cir. 2010), that the sentencing
    court

    address

    the

    defendants

    non-frivolous

    sentence within the Guidelines range.

    arguments

    for

    The Government argues

    that the sentence is procedurally reasonable and that any error


    by

    the

    district

    recognized

    that

    determined

    in

    court

    was

    Hutchisons
    category

    harmless.

    The

    criminal

    history

    because
    3

    district

    Hutchisons

    was

    court

    properly

    seven

    prior

    embezzlement convictions could not be counted separately.


    4A1.2(a)(2).
    category

    as

    USSG

    Other than noting that category I is the same

    defendant

    with

    no

    prior

    criminal

    history,

    the

    courts explanation for its sentence did not address Hutchisons


    arguments against a departure.

    Nor did the court address those

    arguments

    in

    at

    any

    other

    point

    the

    sentencing

    proceedings.

    Thus, contrary to the Governments assertions, we conclude that


    the

    court

    procedurally

    erred.

    Further,

    the

    error

    was

    not

    harmless, as there is no indication in the record that the court


    would

    have

    imposed

    the

    same

    sentence

    if

    it

    had

    addressed

    Hutchisons arguments.
    Hutchison

    also

    argues

    that

    the

    court

    substantively

    erred in characterizing her seven prior embezzlement convictions


    as

    providing

    repeated

    opportunities

    for

    rehabilitation.

    The

    Government argues that this is merely a recharacterization of


    the

    procedural

    argument

    asserted

    by

    Hutchison,

    and

    that

    the

    court acted within its discretion in imposing the sentence.

    We

    conclude that, although Hutchison asserts this is a substantive


    error,

    the

    district

    court

    procedurally

    erred

    in

    its

    characterization of Hutchisons criminal history, specifically


    that she having been given repeated opportunities, simply did
    not get the message.

    The record reveals that Hutchison was

    convicted in 1998 of seven counts of embezzlement arising from


    her thefts from an employer over a seven-month period in 1994.
    4

    Hutchison apparently pled guilty and was sentenced for all seven
    counts on the same day.
    statement,
    learn

    Hutchison

    from

    her

    Thus, contrary to the district courts

    did

    prior

    not

    have

    crimes,

    and

    repeated
    the

    opportunities

    court

    relied

    on

    to
    an

    inaccurate factual basis for its departure.


    The Government argues that the sentence is reasonable
    based

    on

    the

    factors.

    district

    The

    court

    courts
    did

    reference

    not,

    to

    however,

    sentence, but a departure sentence.

    the

    impose

    3553(a)
    a

    variance

    Although the court invoked

    certain 3553(a) factors, nowhere in its explanation did the


    court

    state

    imposed

    the

    that,

    even

    same

    without

    sentence

    as

    the
    an

    departure,
    upward

    it

    would

    variance

    from

    have
    the

    Guidelines range.
    We

    therefore

    for resentencing. *
    facts

    and

    materials

    legal
    before

    vacate

    Hutchisons

    sentence

    and

    remand

    We dispense with oral argument because the


    contentions

    are

    adequately

    this

    and

    argument

    Court

    presented

    would

    not

    in

    the

    aid

    the

    decisional process.
    VACATED AND REMANDED

    Having found procedural error, we express no opinion on


    the substantive reasonableness of Hutchisons sentence.
    On
    remand, the district court is free to determine whether a
    sentence outside the calculated Guidelines range is appropriate.

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