Case No: 06-1668 UNITED STATES OF AMERICA v. Lance Baymon

* The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
NON-PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-1668
UNITED STATES OF AMERICA
v.
LANCE BAYMON,
Appellant
_____________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 03-CR-0222
District Judge: The Honorable Arthur J. Schwab
_____________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 8, 2007
Before: SMITH and GREENBERG Circuit Judges, and
POLLAK, District Judge*
(Filed: June 28, 2007)
_______________________
OPINION
_______________________
POLLAK, District Judge.
Lance Baymon challenges the reasonableness of the sentence he received after

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1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
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pleading guilty to unauthorized possession of credit card numbers in violation of 18
U.S.C. § 1029(a)(3). We will affirm the sentence. 1
I.
Because we write primarily for the parties, we summarize only the essential facts.
Between July 11 and July 19, 2002, Baymon was involved in a fraud scheme that
involved the resale of baseball tickets that had been purchased with stolen credit card
numbers. Baymon was charged by a federal grand jury in September 2003, pled guilty in
December 2004, and was released on bond in February 2004. In March 2005, the State
of Illinois charged Baymon with “Misuse of a Credit Card” and “Identity Theft” based on
conduct he had committed in January 2005, while out on bond in this matter. In April
2005, Baymon failed to appear at a hearing related to those charges. In July 2005,
Baymon failed to appear at a sentencing hearing related to his federal charges. He was
apprehended in Illinois on November 1, 2005 and sentenced on February 3, 2006.
Prior to sentencing, the government moved the court to impose a two-level
enhancement for obstruction of justice based on Baymon’s failure to appear at his initial
sentencing hearing. The government also moved for an upward departure on the basis
that Baymon’s criminal history “clearly understates the seriousness of his criminal history
and the likelihood of recidivism.” J.A. 96. At the time of sentencing, Baymon had six

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2 Based on the conduct to which he pled guilty, Baymon had a base offense level of six
and was subject to a six-level enhancement for a loss amount of $30-70,000. The District
Court granted the Government’s motion for a two-level enhancement for obstruction of
justice but allowed Baymon a two-level reduction for acceptance of responsibility in
recognition of the fact that Baymon had entered a timely guilty plea, thus “reliev[ing] the
government and the Court of the time and expense of a trial.” J.A. 66.
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prior convictions, each resulting in a sentence of less than sixty days, yielding a criminal
history score of four and a criminal history category of III. Two of these prior
convictions—a June 1998 Illinois conviction and a September 2001 conviction—were for
credit card fraud.
The District Court denied the Government’s motion for an upward departure
but granted the Government’s motion for a two-level enhancement. Baymon’s
guidelines-recommended sentence was fifteen to twenty-one months imprisonment, based
on a total offense level of twelve2 and criminal history category of III. Id. at 98. The
court then sentenced Baymon to forty-eight months’ imprisonment.
II.
On appeal, Baymon argues that “[i]f the district court believed that [his] criminal
history justified a sentence outside of the Guideline range” the court should have
enhanced his sentence via an “upward departure motion . . . made in an incremental
fashion.” App. Br. 28. Baymon also argues that a sentence of forty-eight months—more
than twice the twenty-one months ceiling of the advisory guideline range—is
unreasonable “under the facts and circumstances of this case.” Id. at 29.

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A.
In the aftermath of United States v. Booker, 543 U.S. 220 (2005), we concluded
that district courts may impose an above-guidelines sentence “by applying § 3553(a)
instead of potentially applicable Guidelines departures.” United States v. King, 454 F.3d
187, 195 (3d Cir. 2006). We also determined that “ratcheting procedures, which apply to
departures, do not apply to variances.” United States v. Vargas, 477 F.3d 94, 104 n.14 (3d
Cir. 2007); see also United States v. Gunter, 462 F.3d 237, 247 n.10 (3d Cir. 2006)
(distinguishing between “traditional departures based on a specific Guidelines provision
and sentencing ‘variances’ . . . based on Booker and the § 3553(a) factors”). Thus, it was
not error for Baymon’s sentencing court to enhance Baymon’s sentence through a
§ 3553(a) variance rather than an upward departure or to bypass the ratcheting analysis
while doing so.
B.
To determine if a district court acted reasonably in imposing a sentence, we look
to whether the court “appropriately exercised its discretion” by giving “meaningful
consideration” to “the relevant factors under 18 U.S.C. § 3553(a).” United States v.
Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007). A sentence substantially above a
defendant’s advisory guidelines range is not “per se unreasonable.” King, 454 F.3d at
195. However, such an enhancement “must be adequately supported by the record.”
King, 454 F.3d at 195.
When explaining the reasons for its imposition of an above-guidelines sentence on

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Baymon, the District Court noted that “Defendant’s criminal history . . . illustrates the
Defendant has a history of engaging in credit card and identity theft throughout the
country.” J.A. at 105. The court also noted that it was “particularly troubled by the fact
that prior to his arrest in this case Defendant was convicted of theft in Denver, Colorado,
for engaging in nearly identical conduct.” Id. at 106. Finally, the court commented that:
“Although the Defendant today has stated that he has learned his lesson, the Court
believes that a substantial imprisonment is necessary in light of his prior conduct.
Hopefully it will be sufficiently long enough to convince the Defendant that when he is
released he should find lawful employment . . . ” Id.
This explanation appropriately relates Baymon’s sentence to the facts in the record
and factors set out in 18 U.S.C. § 3553(a). It also adequately explains why the District
Court believed a guidelines-range sentence to be insufficient. Accordingly, we conclude
that the District Court did not act unreasonably in sentencing Baymon to a term of
imprisonment of forty-eight months.
III.
For the foregoing reasons, the sentence imposed on Lance Baymon by the District
Court will be affirmed.

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