United States of America v. Nancy Elizabeth Dyal

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4908
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NANCY ELIZABETH DYAL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:09-cr-01169-CMC-1)
Submitted: May 8, 2013 Decided: May 21, 2013
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
H. Wesley Kirkland, Jr., KIRKLAND & RUSH, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Nathan S. Williams, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Nancy Elizabeth Dyal appeals her nine-month, below-
Guidelines sentence imposed following remand for convictions of
conspiracy to violate the Animal Welfare Act and to engage in an
illegal gambling business and two counts of conducting an
illegal gambling business and aiding and abetting the same. On
appeal, Dyal argues (1) that the district court erred by
sentencing her to an active term of incarceration when the court
sentenced her co-defendants, Wayne and Sheri Hutto, to terms of
probation; and (2) that her sentence is greater than necessary
to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2)
(2006). Finding no error, we affirm.
This court reviews a sentence, “whether inside, just
outside, or significantly outside the Guidelines range[,] under
a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, this court examines, among other
factors, whether the district court considered the § 3553(a)
factors. Id. at 49-51. When reviewing a sentence for
substantive reasonableness, this court examines “the totality of
the circumstances, including the extent of any variance from the
Guidelines range.” Id. at 51. If the sentence is below the

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properly calculated Guidelines range, this court applies a
presumption on appeal that the sentence is substantively
reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir.
2012). Such a presumption is rebutted only if the defendant
shows “that the sentence is unreasonable when measured against
the § 3553(a) factors.” United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
One of the factors a court must consider when imposing
a sentence is “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). This
court has recognized, however, that this sentencing factor is
aimed primarily at eliminating national sentencing inequity, not
differences between the sentences of co-defendants. United
States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); see also
United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007)
(collecting cases). Moreover, a “district court[] ha[s]
extremely broad discretion when determining the weight to be
given each of the § 3553(a) factors.” United States v. Jeffery,
631 F.3d 669, 679 (4th Cir. 2011).
Here, although not obligated to do so, the district
court took into account the disparity between Dyal’s sentence
and the Huttos’ sentences but found that the disparity was not

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“unwarranted” due to Wayne Hutto’s terminal illness and Sheri
Hutto’s role as his primary caregiver. See Simmons, 501 F.3d at
624 (giving sentencing court discretion to consider sentencing
discrepancies between co-defendants). Moreover, we conclude
that the court gave due consideration to the other § 3553(a)
factors and Dyal’s own unique circumstances when imposing her
below-Guidelines sentence. See United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (“When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented.” (internal quotation marks omitted)).
Accordingly, we conclude that the district court did not err by
sentencing Dyal to an active term of incarceration when her co-
defendants were sentenced to terms of probation.
Moreover, Dyal contends that a term of probation would
better serve the purposes of § 3553(a)(2), but she fails to
overcome the appellate presumption of reasonableness afforded
her sentence. See Susi, 674 F.3d at 289; Montes-Pineda, 445
F.3d at 379. The district court carefully considered the
§ 3553(a) factors and determined that, while Dyal had a fairly
significant role in the offense, her lack of prior criminal
history and physical infirmities warranted the downward
variance. Thus, we conclude that Dyal’s carefully crafted
sentence was not greater than necessary to accomplish the goals
of 18 U.S.C. § 3553(a)(2).

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Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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