United States of America v.  Brian A. Moreland

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4476 
BRIAN A. MORELAND,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 05-4571 
BRIAN A. MORELAND,
Defendant-Appellee. 
Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-04-142)
Argued: December 2, 2005
Decided: February 22, 2006
Before WILKINS, Chief Judge, LUTTIG, Circuit Judge, and
Walter D. KELLEY, Jr., United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed in part; vacated and remanded in part by published opinion.
Chief Judge Wilkins wrote the opinion, in which Judge Luttig and
Judge Kelley joined.

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COUNSEL
ARGUED: Matthew Anthony Victor, VICTOR, VICTOR & HEL-
GOE, L.L.P., Charleston, West Virginia, for Appellant/Cross-
Appellee. Hunter P. Smith, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee/Cross-Appellant. ON BRIEF: Kasey Warner,
United States Attorney, Charleston, West Virginia, for
Appellee/Cross-Appellant.
OPINION
WILKINS, Chief Judge:
Brian A. Moreland appeals his convictions on two counts of pos-
session with the intent to distribute cocaine base, see 21 U.S.C.A.
§ 841(a)(1) (West 1999). The Government cross-appeals Moreland’s
sentence,1 arguing that the district court acted unreasonably in impos-
ing a sentence of ten years imprisonment—a two-thirds reduction
from the bottom of the advisory guideline range. We affirm More-
land’s convictions. However, we agree with the Government that the
sentence imposed by the district court is unreasonable. We therefore
vacate it and remand for resentencing.
I.
The facts, viewed in the light most favorable to the Government,
are as follows. At some point prior to July 16, 2004, confidential
informant Martin Williamson informed West Virginia law enforce-
ment officers that an individual nicknamed "Bones" would be coming
1Moreland also challenges his sentence, maintaining that he is entitled
to a jury finding regarding his prior convictions under Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (holding that "other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt"). This claim is without merit. See
United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.), cert. denied, 126
S. Ct. 640 (2005).
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to Williamson’s house for the purpose of selling cocaine base.
"Bones" arrived at Williamson’s home on July 16, but did not stay.
Rather, he dropped off Moreland, whom Williamson knew slightly.
Moreland’s intent was to sell cocaine base, and Williamson invited
him to stay at the residence.
Williamson then called State Trooper Anthony Perdue to arrange
a controlled purchase of cocaine base. During the afternoon of the
16th, State Trooper Travis Berry arrived at the home in a vehicle
driven by Trooper Perdue. Williamson spoke with the officers and
then admitted Trooper Berry to the home, where Trooper Berry pur-
chased 5.93 grams of cocaine base from Moreland. Trooper Berry
paid for the narcotics with marked bills.
Later that day, Williamson informed the officers that additional
cocaine base would shortly be delivered to the house. After surveil-
ling the area for several hours without any such delivery occurring,
the officers decided to proceed with an arrest of Moreland. At approx-
imately 2:00 a.m., a group of several officers, including Trooper Per-
due, gathered at Williamson’s residence.
One of the officers knocked on the door. Without opening it, Wil-
liamson asked who was there. Unable to understand the officers’
response, he asked again. Finally, Williamson opened the door. At the
hearing on Moreland’s suppression motion, Williamson testified that
the officers were "welcome" to enter his home once he realized who
they were. J.A. 31. However, the officers did not explicitly ask for,
and Williamson did not explicitly give, consent to a search. The offi-
cers instead directed Williamson to stand aside and entered the resi-
dence, where they arrested Moreland. At the time of his arrest,
Moreland was in possession of 1.92 grams of cocaine base and almost
$1,000 in cash, including $420 of the marked currency used for the
controlled purchase. Moreland was thereafter charged with two
counts of possessing cocaine base with the intent to distribute it.
A jury convicted Moreland of both counts. Thereafter, a presen-
tence report was prepared that recommended sentencing Moreland as
a career offender, see United States Sentencing Guidelines Manual,
§ 4B1.1 (2004), and correctly calculated an advisory guideline range
of 360 months to life imprisonment. The district court accepted More-
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land’s contention that this guideline range "grossly overstate[d] [his]
prior criminal conduct." J.A. 271. The district court concluded that a
360-month sentence would be unreasonable in light of the circum-
stances of Moreland’s current and prior offenses and the other factors
outlined in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). See
United States v. Moreland, 366 F. Supp. 2d 416, 419-25 (S.D. W. Va.
2005). The district court sentenced Moreland to the statutory mini-
mum of ten years imprisonment.
II.
Moreland raises several challenges to his convictions. He maintains
that the district court erred in denying his motion to suppress the evi-
dence seized during the post-arrest search; that the court erred in
admitting Government Exhibits 1 and 2, the cocaine obtained from
Moreland; and that the court should not have allowed lab technician
Carrie Kirkpatrick to testify as an expert regarding the identity of the
substances obtained from Moreland.2 We will address these claims
seriatim.
A.
Prior to trial, Moreland moved to suppress the evidence obtained
during the post-arrest search, maintaining that the law enforcement
officers violated the Fourth Amendment when they entered William-
son’s home to arrest Moreland without a search warrant or William-
son’s consent. See Steagald v. United States, 451 U.S. 204, 205-06
(1981) (holding that absent exigent circumstances, law enforcement
officers must obtain a search warrant or consent prior to entering a
home for the purpose of effecting an arrest). We affirm the ruling of
the district court.
2Moreland additionally maintains that the district court should have
authorized the disclosure of information regarding the composition of the
grand jury that indicted him or at least should have reviewed the infor-
mation in camera. Because Moreland made no showing "that a ground
may exist to dismiss the indictment because of a matter that occurred
before the grand jury," Fed. R. Crim. P. 6(e)(3)(E)(ii), we hold that the
district court did not abuse its discretion in denying the request, see In
re Grand Jury Subpoena, 223 F.3d 213, 219 (3d Cir. 2000) (stating stan-
dard of review).
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The Fourth Amendment to the United States Constitution prohibits
"unreasonable searches and seizures." U.S. Const. amend. IV. And, it
is well settled that a search conducted without a warrant is per se
unreasonable unless it falls within one of the "specifically established
and well-delineated exceptions" to the warrant requirement. Katz v.
United States, 389 U.S. 347, 357 (1967). Voluntary consent to a
search is such an exception. See Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973).
There is no question that consent to search can be implied from a
person’s words, gestures, or conduct. See, e.g., United States v. Hyl-
ton, 349 F.3d 781, 786 (4th Cir. 2003) (citing cases). It is the Govern-
ment’s burden, however, to establish the existence of such consent.
See Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion).
"This burden is heavier where consent is not explicit, since consent
is not lightly to be inferred." United States v. Impink, 728 F.2d 1228,
1232 (9th Cir. 1984) (internal quotation marks omitted). In determin-
ing whether consent to search was freely and voluntarily given, the
factfinder must examine the totality of the circumstances surrounding
the consent. See Schneckloth, 412 U.S. at 227. In reviewing the denial
of a motion to suppress, we review the factual findings of the district
court for clear error and its legal conclusions de novo. See United
States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997).
The district court relied on United States v. Williams, 106 F.3d
1173 (4th Cir. 1997). In Williams, this court found that a confidential
informant had implicitly consented to a search of mail addressed to
him (and in which he had a reasonable expectation of privacy) when
that mail was delivered to a government-controlled post office box at
the behest of the confidential informant. See Williams, 106 F.3d at
1177-78. The Williams panel relied on United States v. Kurck, 552
F.2d 1320, 1321 (8th Cir. 1977) (per curiam), in which a confidential
informant’s cooperation with the Secret Service—particularly, his use
of government funds to purchase counterfeit money and his agree-
ment to use his vehicle to lead agents to the counterfeiters—
established the informant’s implied consent to the search of the vehi-
cle.
In light of the facts found by the district court, the denial of the
motion to suppress was not error. Testimony at the suppression hear-
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ing established that Williamson had a close working relationship with
law enforcement and that he had allowed an undercover officer into
his home to purchase drugs from Moreland. Moreover, Williamson
testified that the officers were "welcome" to enter his home even
though they did not ask his permission to do so. Cf. United States v.
Albrektsen, 151 F.3d 951, 955 (9th Cir. 1998) (concluding that defen-
dant who moved aside from hotel room door did not implicitly con-
sent to a search when the defendant knew that "entry was going to be
made with or without permission").
B.
Moreland next challenges the admission of Government Exhibits 1
and 2, which consisted of the cocaine purchased from Moreland and
seized from him following his arrest. We conclude that the district
court did not abuse its discretion in admitting the exhibits. See United
States v. White, 405 F.3d 208, 212 (4th Cir.) (stating standard of
review), cert. denied, 126 S. Ct. 668 (2005).
At trial, Trooper Perdue identified Government Exhibit 1 as the
5.93 grams of cocaine base purchased by Trooper Berry, and Govern-
ment Exhibit 2 as the 1.92 grams of cocaine base seized after More-
land’s arrest. Subsequently, however, Trooper Berry identified
Exhibit 2 as the purchased cocaine base, noting that his initials were
on a piece of tape on the packaging. The Government recalled
Trooper Berry, who reiterated that the purchased cocaine base was
Exhibit 1; he surmised that the packaging had been confused at the
lab. Over Moreland’s objection, the district court admitted the exhib-
its into evidence.
We conclude that the district court did not abuse its discretion.
Trooper Berry’s testimony regarding the chain of custody was suffi-
cient to allow the jury to conclude that the substances in Exhibits 1
and 2 were the substances obtained from Moreland. See Fed. R. Evid.
901(a); United States v. Gonzalez, 940 F.2d 1413, 1421 (11th Cir.
1991). The conflict in the officers’ testimony regarding the exhibits
goes to the weight of the exhibits, not their admissibility. See United
States v. Rodriguez, 968 F.2d 130, 143 (2d Cir. 1992).
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C.
The Government offered the testimony of Carrie Kirkpatrick, an
employee of the West Virginia State Police forensic laboratory, for
the purpose of establishing that the substances obtained from More-
land were cocaine base. The Government sought to have her certified
as an expert, and Moreland challenged this classification. The district
court stated that it had "never found it necessary . . . to characterize
a witness one way or the other," but rather that it would simply rule
on the admissibility of her testimony. J.A. 166.
After Kirkpatrick identified the substances obtained from Moreland
as cocaine base, Moreland vigorously cross-examined her as to her
methodology. Among other things, this cross-examination revealed
that Kirkpatrick could not identify what type of chemical reaction was
taking place (e.g., combustion, synthesis, decomposition, or displace-
ment), did not know the error rate for the tests she used, and did not
know the expiration date on the chemicals she used. Although she
knew what chemicals she used in the tests, she could not identify the
chemical structure of all of them. Kirkpatrick did testify, however,
that the West Virginia lab followed protocols for testing the sub-
stances that were "accepted in the scientific community throughout
the United States," id. at 182, that the machine she used was cali-
brated on a daily basis (although she could not specifically recall the
machine being calibrated on the day she tested the cocaine base
obtained from Moreland), and that reviews of her work had consis-
tently demonstrated it to be error-free.
Moreland challenges the admission of Kirkpatrick’s testimony,
arguing that her deficiencies as a witness should have precluded her
from testifying regarding the composition of the substances obtained
from him. This challenge fails because the district court did not abuse
its discretion in finding Kirkpatrick’s testimony admissible. See West-
berry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (stat-
ing standard of review).
The introduction of expert opinion testimony is governed by Fed-
eral Rule of Evidence 702, which provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
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determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Expert testimony is admissible under Rule 702 if it concerns
(1) scientific, technical, or other specialized knowledge that (2) will
aid the trier of fact to understand or resolve a fact at issue. See Dau-
bert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). The
first prong of this inquiry necessitates an examination of whether the
reasoning or methodology underlying the expert’s proffered opinion
is reliable—that is, whether it is supported by adequate validation to
render it trustworthy. See id. at 590 & n.9. The second prong of the
inquiry requires an analysis of whether the opinion is relevant to the
facts at issue. See id. at 591-92.
A district court considering the admissibility of expert testimony
exercises a gatekeeping function to assess whether the proffered evi-
dence is sufficiently reliable and relevant. See Kumho Tire Co. v. Car-
michael, 526 U.S. 137, 141 (1999). The inquiry to be undertaken by
the district court is "a flexible one" focusing on the "principles and
methodology" employed by the expert, not on the conclusions
reached. Daubert, 509 U.S. at 594-95. In evaluating the admissibility
of the testimony, the court should consider a variety of factors,
including whether the method used is generally accepted in the scien-
tific community; the rate of error, if known; the existence and mainte-
nance of standards; and whether the expert’s work has been subjected
to peer review. See Anderson v. Westinghouse Savannah River Co.,
406 F.3d 248, 261 (4th Cir. 2005), petition for cert. filed, 74 U.S.L.W.
3309 (Nov. 7, 2005) (No. 05-616). The court need not determine that
the proffered expert testimony is irrefutable or certainly correct. See
Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th Cir. 1996). As
with all other admissible evidence, expert testimony is subject to test-
ing by "[v]igorous cross-examination, presentation of contrary evi-
dence, and careful instruction on the burden of proof." Daubert, 509
U.S. at 596.
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With these standards in mind, the district court did not err in allow-
ing Kirkpatrick to testify that the substances obtained from Moreland
were cocaine base. Kirkpatrick testified that her testing methods were
accepted in the relevant scientific community and were subject to
quality control measures; she also testified regarding the standards
against which her test results were measured. Although Kirkpatrick
had significant gaps in her knowledge, these gaps were relevant to the
weight of her testimony, not its admissibility. We therefore affirm the
ruling of the district court.
III.
Having addressed Moreland’s challenges to his convictions, we
now consider the Government’s appeal of the sentence imposed by
the district court. For the reasons set forth below, we vacate the sen-
tence and remand for resentencing.
A.
In United States v. Booker, 125 S. Ct. 738, 756 (2005), the
Supreme Court held that the Sixth Amendment right to a jury trial is
violated when the district court, acting pursuant to a mandatory guide-
lines system, imposes a sentence greater than the maximum autho-
rized by the facts found by the jury alone. To remedy this problem,
the Court severed and excised the provisions of the Sentencing
Reform Act3 that mandated sentencing and appellate review in con-
formance with the guidelines. See Booker, 125 S. Ct. at 764 (severing
and excising 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) and 18
U.S.C.A. § 3742(e) (West 2000 & Supp. 2005)). This excision ren-
dered the guidelines "effectively advisory," id. at 757, and replaced
the previous standard of review with review for reasonableness, see
id. at 765-66.
That the guidelines are non-binding in the wake of Booker does not
mean that they are irrelevant to the imposition of a sentence. To the
3Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch. II, 98 Stat.
1987-2040 (1984) (codified as amended at 18 U.S.C.A. §§ 3551-3742
(West 2000 & Supp. 2005) and at 28 U.S.C.A. §§ 991-998 (West 1993
& Supp. 2005)).
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contrary, remaining provisions of the Sentencing Reform Act require
the district court to consider the guideline range applicable to the
defendant and pertinent policy statements of the Sentencing Commis-
sion. See 18 U.S.C.A. § 3553(a)(4), (a)(5); Booker, 125 S. Ct. at 767
(stating that district courts "must consult [the] Guidelines and take
them into account when sentencing"). In addition to the guidelines,
the district court must consider "the nature and circumstances of the
offense and the history and characteristics of the defendant," 18
U.S.C.A. § 3553(a)(1); the court also must ensure that the sentence it
imposes "fulfill[s] the congressionally established objectives for sen-
tencing: promoting respect for the law; providing just punishment for
the offense; affording adequate deterrence; protecting the public from
further criminal activity of the defendant; providing the defendant
training, medical care, and correctional treatment; . . . providing resti-
tution to victims," and avoiding unwarranted sentencing disparities.
United States v. Green, 2006 WL 267217, at *4 (4th Cir. Feb. 6,
2006); see 18 U.S.C.A. § 3553(a)(2), (a)(3), (a)(6), (a)(7).
Thus, in imposing a sentence after Booker, the district court must
engage in a multi-step process. First, the court must correctly deter-
mine, after making appropriate findings of fact, the applicable guide-
line range. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). Next, the court must "determine whether a sentence within that
range . . . serves the factors set forth in § 3553(a) and, if not, select
a sentence [within statutory limits] that does serve those factors."
Green, 2006 WL 267217, at *4. In doing so, the district court should
first look to whether a departure is appropriate based on the Guide-
lines Manual or relevant case law. (We will return to this subject
momentarily.) If an appropriate basis for departure exists, the district
court may depart. If the resulting departure range still does not serve
the factors set forth in § 3553(a), the court may then elect to impose
a non-guideline sentence (a "variance sentence"). The district court
must articulate the reasons for the sentence imposed, particularly
explaining any departure or variance from the guideline range. See 18
U.S.C.A. § 3553(c) (West Supp. 2005); Hughes, 401 F.3d at 546 &
n.5. The explanation of a variance sentence must be tied to the factors
set forth in § 3553(a) and must be accompanied by findings of fact as
necessary. See Green, 2006 WL 267217, at *4-*5. The district court
need not discuss each factor set forth in § 3553(a) "in checklist fash-
ion"; "it is enough to calculate the range accurately and explain why
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(if the sentence lies outside it) this defendant deserves more or less."
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (internal
quotation marks omitted).
We note that the continuing validity of departures in post-Booker
federal sentencing proceedings has been a subject of dispute among
the circuits. Compare United States v. McBride, 2006 WL 89159, at
*4 (6th Cir. Jan. 17, 2006) (stating that consideration of a departure
is part of calculating the correct guideline range), with United States
v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006) (holding that district
courts must decide whether a "traditional departure" is appropriate
after calculating the guideline range and before deciding whether to
impose a variance sentence (internal quotation marks omitted)), and
with United States v. Vaughn, 2006 WL 29208, at *5 (7th Cir. Jan.
6, 2006) ("[T]he concept of a discretionary departure . . . has been
rendered obsolete in the post-Booker world." (internal quotation
marks omitted)). We believe, however, that so-called "traditional
departures"—i.e., those made pursuant to specific guideline provi-
sions or case law4—remain an important part of sentencing even after
Booker.5
Our task in reviewing a post-Booker federal sentence is to deter-
mine whether the sentence is "within the statutorily prescribed range
and is reasonable." Hughes, 401 F.3d at 547 (citations omitted).
4A traditional departure based upon case law would include, for exam-
ple, a departure premised on a previous determination by this court that
a particular circumstance is outside the "heartland" of the applicable
guideline. See U.S.S.G. § 1A1.1, ed. note 4(b); United States v. Barber,
119 F.3d 276, 280-81 (4th Cir. 1997).
5Although we are certain that departures continue to be relevant to
post-Booker federal sentencing proceedings, we are less certain that the
district court must continue to provide notice of an intent to depart "on
a ground not identified for departure either in the presentence report or
in a party’s prehearing submission." Fed. R. Crim. P. 32(h); see Hawk
Wing, 433 F.3d at 633 (Loken, Chief Judge, concurring) (arguing that a
"notice error" is harmless "because, after Booker, every defendant is
aware that the [district] court may sentence outside the guidelines range
based on the § 3553(a) factors"). This issue remains to be resolved in an
appropriate case.
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Although this standard clearly requires us to afford a degree of defer-
ence to the sentencing decisions of the district court, "reasonableness"
is not a code-word for "rubber stamp." Our task is a "complex and
nuanced" one, Green, 2006 WL 267217, at *5, requiring us to con-
sider the extent to which the sentence imposed by the district court
comports with the various, and sometimes competing, goals of
§ 3553(a).
The reasonableness of a sentence ultimately will turn on the partic-
ular factors of each case. Nevertheless, certain principles would
appear to be universally applicable. As always, we review legal ques-
tions, including the interpretation of the guidelines, de novo, while
factual findings are reviewed for clear error. See United States v.
Caplinger, 339 F.3d 226, 233 (4th Cir. 2003). "An error of law," such
as incorrectly identifying the applicable guideline range, "can render
a sentence unreasonable," as can an error of fact. Green, 2006 WL
267217, at *5.
A sentence that falls within the properly calculated advisory guide-
line range is entitled to a rebuttable presumption of reasonableness.
See, e.g., United States v. Mykytiuk, 415 F.3d 606, 607-08 (7th Cir.
2005). This does not mean, however, that a variance sentence is pre-
sumptively unreasonable. Such a ruling would transform an "effec-
tively advisory" system, Booker, 125 S. Ct. at 757, into an effectively
mandatory one. Rather, in reviewing a variance sentence, this court
must consider—in light of the factors enumerated in § 3553(a) and
any relevant guideline provisions—whether the district court acted
reasonably with respect to (1) the imposition of a variance sentence,
and (2) the extent of the variance. See id. at 765-66; United States v.
Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005); cf. United States v.
Hairston, 96 F.3d 102, 106-07 (4th Cir. 1996) (noting that both the
decision to depart and the extent of departure are subject to review for
abuse of discretion).
Reasonableness review involves both procedural and substantive
components. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.
2005), cert. denied, 74 U.S.L.W. 3393 (U.S. Jan. 9, 2006) (No. 05-
7953). A sentence may be procedurally unreasonable, for example, if
the district court provides an inadequate statement of reasons or fails
to make a necessary factual finding. A sentence may be substantively
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unreasonable if the court relies on an improper factor or rejects poli-
cies articulated by Congress or the Sentencing Commission. See
Green, 2006 WL 267217, at *5; see also United States v. Clark, 2006
WL 60273, at *3 (4th Cir. Jan. 12, 2006) (holding sentence unreason-
able insofar as the district court rested the sentence on a misapplica-
tion of § 3553(a)(6)).
Generally, if the reasons justifying the variance are tied to
§ 3553(a) and are plausible, the sentence will be deemed reasonable.
However, when the variance is a substantial one—such as the two-
thirds reduction from the bottom of the advisory guideline range that
is at issue here—we must more carefully scrutinize the reasoning
offered by the district court in support of the sentence. The farther the
court diverges from the advisory guideline range, the more compel-
ling the reasons for the divergence must be. See Dean, 414 F.3d at
729; accord United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.
2005) (holding, in the context of a downward departure for substantial
assistance to the government, that "[a]n extraordinary reduction must
be supported by extraordinary circumstances").
B.
We now recount the manner in which the district court sentenced
Moreland. As it was required to do, the district court first correctly
identified the applicable guideline range. The court determined that
Moreland had previously been convicted of two felony controlled
substance offenses: in 1992, for delivering a marijuana cigarette to a
prison inmate; and in 1996, for possessing with the intent to deliver
6.92 grams of cocaine base. In light of these prior offenses, More-
land’s age, and the nature of the offenses of conviction, the guide-
lines, pursuant to congressional direction, indicated that Moreland
should be sentenced as a career offender. See U.S.S.G. § 4B1.1(a); 28
U.S.C.A. § 994(h) (West 1993 & Supp. 2005). Because the maximum
statutory penalty was life imprisonment, see 21 U.S.C.A.
§ 841(b)(1)(B) (West 1999 & Supp. 2005), the career offender guide-
line provided for a base offense level of 37, see U.S.S.G.
§ 4B1.1(b)(A). This offense level, combined with the guideline-
dictated Criminal History Category of VI, see id. § 4B1.1(b), pro-
duced a guideline range of 360 months to life imprisonment. The dis-
trict court determined (incorrectly, as explained infra note 9) that
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without application of § 4B1.1, Moreland’s guideline range would
have been 78-97 months.
The district court then turned to consideration of the factors set
forth in § 3553(a).6 Looking first at "the nature and circumstances of
the offense and the history and characteristics of the defendant," 18
U.S.C.A. § 3553(a)(1), the court noted that the offense involved a rel-
atively small amount of cocaine base, was nonviolent, and did not
involve a firearm. In the same vein, the court observed that neither of
Moreland’s prior offenses had involved violence or firearms. The
court further concluded that Moreland "has the ability and potential
to become a productive member of society," Moreland, 366 F. Supp.
2d at 420, based on Moreland’s completion of high school and some
college and his employment history.
The district court next considered the factors set forth in
18 U.S.C.A. § 3553(a)(2). In particular, the district court indicated
that it was troubled by the notion of sentencing Moreland as a career
offender, noting that the career offender guideline "cast[s] a wide
net," putting "Moreland’s distribution of a single marijuana cigarette
on par with a kingpin in a drug conspiracy who is convicted of dis-
tributing kilos of drugs or a violent offender who uses firearms or
threats of harm to commit his crimes." Id. at 421. The court then con-
cluded that Moreland’s current and prior offenses "hardly constitute
the type and pattern of offenses that would indicate that Mr. Moreland
has made a career out of drug trafficking." Id.
Based on this analysis, the district court concluded that a variance
sentence was warranted because it was not appropriate to sentence
6The district court did not explicitly consider the possibility of a depar-
ture under U.S.S.G. § 4A1.3(b)(1), p.s. (allowing for a downward depar-
ture "[i]f reliable information indicates that the defendant’s criminal
history category substantially over-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will
commit other crimes"). We do not fault it for not doing so, however. At
the time of Moreland’s sentencing, the only direction from this circuit
regarding post-Booker sentencing was Hughes, which did not mention
departures. In any event, as discussed infra note 8, such a departure
would have been improper.
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Moreland as a career offender. Rather, the court concluded that the
statutory mandatory minimum sentence of ten years—20 years, or
two-thirds, less than the bottom of the advisory guideline range—was
sufficient to achieve the goals set forth in § 3553(a)(2). This sentence,
the court stated, was "well above" the non-career offender guideline
range and thus accounted for Moreland’s previous convictions; the
court additionally viewed the sentence as being long enough to deter
Moreland from committing future crimes, but short enough to give
Moreland "an excellent chance of turning his life around" after prison.
Id. at 420, 422. Finally, the district court reasoned that a sentence of
ten years would not produce an unwarranted sentencing disparity, see
18 U.S.C.A. § 3553(a)(6); in the view of the district court, a lower
sentence than that given to other career offenders was appropriate
under the circumstances. See Moreland, 366 F. Supp. 2d at 422-24.
C.
1.
In assessing the sentence imposed by the district court, we begin
with the question of whether the court acted reasonably in deciding
to impose a variance sentence. We conclude that this decision was a
reasonable one.
Congress directed the Sentencing Commission to "assure that the
guidelines specify a sentence to a term of imprisonment at or near the
maximum term authorized" for offenders who repeatedly commit fel-
onies involving drugs or violence. 28 U.S.C.A. § 994(h). This direc-
tive evinces Congress’ view that certain repeat offenders should
receive markedly longer sentences than other repeat offenders or
those with little or no criminal history. Accord 28 U.S.C.A. § 994(i)
(West 1993 & Supp. 2005) (directing the Commission to "assure that
the guidelines specify a sentence to a substantial term of imprison-
ment" for certain categories of offenders). The Sentencing Commis-
sion has recognized, however, that a defendant’s record of prior
convictions may increase his sentence disproportionately to the sever-
ity of his prior crimes. See U.S.S.G. § 4A1.3(b), p.s.
We agree with the district court that a variance was warranted here.7
7Indeed, the Government conceded as much at oral argument. The
Government’s challenge to the sentence is not to the fact of the variance,
but to its extent.
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Application of the career offender guideline is "fraught with potential
imprecision." United States v. Adkins, 937 F.2d 947, 952 (4th Cir.
1991). The career offender guideline covers a broad range of offend-
ers, encompassing the street-level dealer who handles only small
quantities of drugs and the drug kingpin or the recidivist with a his-
tory of violence. The district court here determined that sentencing
Moreland as a career offender would not comport with the goals of
§ 3553(a), and we cannot reject this conclusion as unreasonable. As
the district court noted, Moreland’s prior offenses involved small
quantities of drugs and no firearms or violence.8
2.
The second question we must address is whether the extent of the
variance was reasonable. For the reasons set forth below, we conclude
that the district court committed "a clear error of judgment by arriving
at a sentence outside the limited range of choice dictated by the facts
of the case." Hawk Wing, 433 F.3d at 631 (internal quotation marks
omitted).
We note at the outset that the problem does not lie in the manner
in which the district court set forth its reasoning concerning the sen-
tence imposed—in other words, the sentence is reasonable in a proce-
dural sense. Indeed, the careful consideration of the pertinent
§ 3553(a) factors by the district court was exemplary. However, the
circumstances of this case are not so compelling as to warrant the sub-
stantial variance imposed by the district court.
8This holding is not inconsistent with our pre-Booker holdings regard-
ing departures from a career offender guideline range. See United States
v. Pearce, 191 F.3d 488, 498 (4th Cir. 1999) ("[W]e cannot conceive of
any drug felony that would be considered minor" for purposes of depart-
ing from a career offender guideline range.); United States v. Brown, 23
F.3d 839, 841-42 (4th Cir. 1994) (holding that downward departure from
career offender guideline range was not justified by small amount of
drugs involved in prior offense). Were we reviewing a departure under
the previous, mandatory system, these precedents would compel us to
reverse. However, what we are reviewing here is an exercise of discre-
tion by the district court to impose a sentence under § 3553(a). Previous
rulings concerning departures under the now-defunct § 3553(b)(1) may
inform our analysis of such a sentence, but they cannot control it.
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The district court based the variance sentence on three circum-
stances: (1) the relatively small quantity of drugs involved in More-
land’s current and prior offenses; (2) the absence of firearms or
violence from the offenses; and, to a lesser extent, (3) its perception
of Moreland as a person with "the ability and potential to become a
productive member of society." Moreland, 366 F. Supp. 2d at 420.
With respect to the first two items in particular, the district court con-
cluded that Moreland was not the type of person Congress intended
to target as a career offender.
To the extent that the sentence imposed by the district court rests
on a rejection of congressional policy with respect to repeat drug
offenders, it is subject to reversal on that basis alone. Because it
appears that the district court did attempt to reconcile congressional
policy with the circumstances of this case, however, we will not
assume that an outright rejection occurred. See Moreland, 366 F.
Supp. 2d at 420 (asserting that a sentence of ten years "takes into
account the fact that the present offense is not his first conviction").
We therefore must consider whether the circumstances of this case are
so compelling as to warrant the maximum possible downward vari-
ance, i.e., the imposition of the statutory mandatory minimum sen-
tence.
In a word, they are not. Based on the record before us, Moreland
appears to be a small-time drug dealer. He is, nevertheless, a repeat
drug offender who appears to have come to West Virginia for the sole
purpose of selling cocaine base.9 Additionally, Moreland’s desultory
9In this vein, we note that we are not persuaded that sentencing More-
land to the statutory mandatory minimum sentence will provide "just
punishment" for the offense. 18 U.S.C.A. § 3553(a)(2)(A). There is no
question that ten years is "a very substantial amount of time to spend in
prison." Moreland, 366 F. Supp. 2d at 420. It is also, however, the same
sentence Moreland would have received if he had had only one prior
conviction. The sentence imposed by the district court thus does not truly
account for Congress’ judgment that those who repeatedly commit drug
felonies should be severely punished for their actions.
Further, it was incorrect for the district court to compare the statutory
mandatory minimum sentence of ten years to the guideline range of 78
to 97 months imprisonment that it calculated would have applied to
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pursuit of his education and his spotty employment history—six jobs
over the course of seven years, with his last legitimate employment
in 1999—can provide little confidence in his willingness to become
a productive member of society, irrespective of his ability to do so.
If Moreland’s circumstances are so compelling as to warrant a two-
thirds reduction from the bottom of the advisory guideline range, it
is difficult to imagine any meaningful limit on the discretion of the
district court.10 But cf. United States v. Williams, 2006 WL 68559, at
*4-*5 (11th Cir. Jan. 13, 2006) (per curiam) (affirming, as reasonable,
52 percent downward variance from career offender guideline range
based on the assessment of the district court that the advisory guide-
line range of 188 to 235 months imprisonment was disproportionate
to the offense of selling $350 worth of cocaine base).
We therefore vacate the sentence and remand for the imposition of
a sentence of no less than 20 years imprisonment.
IV.
For the reasons set forth above, we affirm Moreland’s convictions.
We vacate his sentence and remand for resentencing.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
Moreland had he not qualified for career offender status. See id. Once the
Government established that Moreland had been convicted of one prior
drug felony, he became subject to a statutory mandatory minimum term
of ten years imprisonment. See 21 U.S.C.A. § 841(b)(1)(B). Moreland’s
guideline range had he not been a career offender, therefore, would have
been ten years. See U.S.S.G. § 5G1.1(b) ("Where a statutorily required
minimum sentence is greater than the maximum of the applicable guide-
line range, the statutorily required minimum sentence shall be the guide-
line sentence.").
10For an example of truly compelling circumstances justifying the
imposition of a sentence nearly twice the maximum of the advisory
guideline range, see United States v. Jordan, 2006 WL 73406, at *4-*6
(7th Cir. Jan. 13, 2006).
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