United States v. Lymas

• Decision Date: 18 March 2015
• Docket Number: 13–4650.,Nos. 13–4635,13–4636,s. 13–4635
• Citation: 781 F.3d 106
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Xavier Deshawn LYMAS, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Lionel Bernard Newman, a/k/a Mooky, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Jessie Gomez, a/k/a Jesus, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

781 F.3d 106

UNITED STATES of America, Plaintiff–Appellee

v.Xavier Deshawn LYMAS, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Lionel Bernard Newman, a/k/a Mooky, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Jessie Gomez, a/k/a Jesus, Defendant–Appellant.

Nos. 13–4635

13–4636

13–4650.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 11, 2014.

Decided: March 18, 2015.

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.

Before TRAXLER, Chief Judge, and WYNN and HARRIS, Circuit Judges.

Opinion

Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WYNN and Judge HARRIS joined.

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 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.

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, 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 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 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 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...