                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4121


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TYRONE MAURICE WILLIAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:14-cr-00043-BO-1)


Argued:   September 20, 2016                 Decided:   November 18, 2016


Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed in part; vacated in part and remanded with instructions
by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.        Barbara
Dickerson Kocher, 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.      Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Yvonne V.
Watford-McKinney, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Tyrone Maurice Williams was indicted and pled guilty to

Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (“Count 1”);

using   and    carrying      a   firearm      during    and   in     relation      to   and

possessing a firearm in furtherance of a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A) (“Count 2”); possession of

a firearm by a convicted felon, in violation of 18 U.S.C. §§

922(g)(1)      (“Count      3”);     and    robbery     of    a    credit    union,     in

violation      of    18    U.S.C.    §     2113(a)    (“Count       4”).     We     affirm

Williams’      convictions,         vacate    his     sentence,      and    remand      for

resentencing before a different district judge.

                                             I.

     Counts 1 and 2 of the indictment in this case arose out of

Williams’ robbery of a Dollar General store in New Bern, North

Carolina, on July 24, 2012.                 During the robbery, Williams shot

the store cashier and store manager, inflicting serious physical

injuries      upon   both     men.         Williams    then       forced    the    injured

cashier to open the safe.             He fled with $600 in currency.                 Count

3 involved an incident occurring in Winterville, North Carolina,

in August 2012.           Police officers responding to a noise complaint

found Williams and others loitering around a vehicle.                             When the

officers approached the group, Williams pulled a handgun from

his waistband and fled on foot.                   Williams was apprehended and

the gun was recovered.               Count 4 arose out of Williams’ armed

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robbery of the First Flight Federal Credit Union in New Bern,

North Carolina, in February 2014.                 Williams passed a threatening

note demanding money to a teller.                       The teller put $4,373 in

currency into an envelope and gave it to Williams.                                   Subsequent

to his arrest, Williams confessed to robbing the credit union,

robbing     the    Dollar     General    store,         and   shooting           the       Dollar

General employees.

      Williams pled guilty as charged to all counts without a

plea agreement.       Counts 1 and 4 each carried a maximum statutory

term of imprisonment of 20 years, and Count 3 carried a maximum

statutory term of imprisonment of 10 years.                     The statutory range

for Count 2 was 10 years to life imprisonment.

      The    presentence        report      grouped       Counts        1,       3     and     4.

Williams’       adjusted     offense    level     for     Count    1    was          30,    which

included    a     10-level    increase      for       infliction   of        permanent         or

life-threatening          bodily   injury       and    abduction       of    a       person    to

facilitate the commission of an offense.                      The adjusted offense

levels for Counts 3 and 4, respectively, were 14 and 24.                                    Under

the   grouping      rules,     the     highest        offense     level          of    30     was

increased by 1, resulting in a combined adjusted offense level

of 31.      A 3-level reduction for acceptance of responsibility

reduced the total offense level to 28.                    With a criminal history

category of IV, Williams’ advisory Guidelines sentencing range

was   110    to     137     months’     imprisonment.             Count          2     required

                                            4
imposition of a consecutive sentence and was excluded from the

grouping rules.            The advisory Guidelines sentence for Count 2

was the statutory minimum 10-year term of imprisonment.                      Neither

Williams nor the government objected to the presentence report.

      The district court held a sentencing hearing on January 21,

2015.    The district court began the hearing by asking Williams

if he “want[ed] to say anything about the punishment [he would]

receive,” to which Williams simply responded, “No, Sir.”                         J.A.

24.     What followed can only be described (at best) as a testy

exchange between the district court and Williams about Williams’

crimes   and    the    district     court’s     view    that    Williams   was   not

remorseful.       The district court began by demanding to know why

Williams “tr[ied] to murder” the Dollar General employees.                       J.A.

24.     When Williams stated that he “didn’t try to murder them”

and   that     “it    wo[uld]n’t     happen”     again,    the    district      court

informed Williams that “[i]t won’t happen because I’m going to

put you in jail forever.”            J.A. 25.     When Williams acknowledged

that he could not “change what happened,” but did “have the

opportunity to apologize” and “grow from it and become . . . a

better person,” the district court told Williams that there were

“some    things      you    can’t   apologize    for”     and    that   “[i]n    some

societies they would just eliminate you. . . .                     You won’t have

to worry about getting better, you would be gone.”                  J.A. 27.



                                         5
       The       district      court    then    heard   from    the    Dollar     General

victims about the effect the incident had upon their lives and

the lives of their families.                   The district court stated that in

more than three decades it had “never heard an allocution as

powerful” as those offered by the victims and that, in contrast,

Williams had been “brazen enough to look at these people whose

lives he has crushed and driven into the ground with virtually

no remorse.”            J.A. 41.       The district court further stated that

it could not “see any justification for a sentence below the

maximum that the statute and law would permit,” and suggested

that       the    “appellate      courts     c[ould]    listen    to    and   read    the

testimony of the witnesses and the lack of contrition on the

part of the defendant.”                J.A. 42.

       At        the    conclusion      of   the   hearing,     the    district    court

imposed a total term of imprisonment of 480 months.                       On Counts 1

and    4    (the       two   robbery    charges),    the   district     court     imposed

concurrent         statutory      maximum      sentences   of    240    months.      The

district court also imposed the statutory maximum sentence of

120 months for Count 3 (the felon-in-possession charge), but

ordered that it run consecutively to the other counts in the

group.       This resulted in a sentence of 360 months on the three

grouped counts.              The district court then added the mandatory

minimum sentence of 120 months on Count 2, raising the total

term of imprisonment to 480 months.

                                               6
       The next day, however, the district court sua sponte gave

notice to the parties of its intent to reopen the sentencing

proceeding, and the court scheduled a hearing for January 27.

At    the    inception        of   the      hearing,        the    district    court       sought

agreement from the government and Williams’ counsel that it had

the    power       to   reopen        the    sentencing           proceeding       and     change

Williams’ sentence.             Both agreed that it did.

       After       “incorporat[ing]            by       reference    everything      that      was

said       including      the      allocution             participation       at     the       last

hearing,” the district court stated that, “after thinking about

how [it] imposed [the 480-month] sentence[,] [it] want[ed] to go

back and remove that and consider a different approach to it.”

J.A. 51.          The district court, upon “reflection,” then imposed a

total prison term of 360 months.                          J.A. 52.        For grouped Counts

1,    3,    and    4,   the    district        court       imposed    a    within-guidelines

sentence of 120 months.                For Count 2, the district court varied

upward and imposed a consecutive sentence of 240 months (double

the mandatory minimum and well below the statutory maximum of

life imprisonment).

       The    district        court      explained         its    reconsideration         of   the

480-month sentence.                First, the district court judge advised

that he had been under the mistaken impression at the initial

sentencing         hearing     that      the    maximum          sentence    that    he     could

impose for Count 2 was 10 years’ imprisonment.                                     Second, the

                                                    7
district court judge observed that “under the guidelines and

under sentencing law and taking 3553(a) into account,” Count 2

was “the place where I should [have] upwardly depart[ed],” J.A.

52, because “the use of the firearm [was] the salient object in

this case that caused all the damage,” J.A. 54.                         Finally, the

district court explained that “[i]n the fast moving way in which

the hearing went dominated by the allocution there wasn’t enough

time to think about what an appropriate upward departure would

be.   And I believe after reflection this is what I should do.”

J.A. 53.

      On appeal, Williams challenged his convictions on Counts 1

and 2, and his 360-month sentence as substantively unreasonable.

The government did not appeal.                 We directed the parties to file

supplemental       briefs    addressing        the    question     of    whether   the

district      court   had    jurisdiction            to   reopen   the    sentencing

proceeding and reduce Williams’ sentence to 360 months.                      We also

requested the parties to supplement their briefs to address the

question      of   whether    the    480-month        sentence     imposed    by   the

district court was substantively reasonable.

                                        II.

      Williams challenges his convictions on Counts 1 and 2 on

the   basis    that   the    Hobbs   Act       is    unconstitutional      under   the

Commerce Clause of the United States Constitution.                       As Williams

acknowledges, this argument is foreclosed by precedent.                            See

                                           8
United States v. Williams, 342 F.3d 350, 354 (4th Cir. 2003).

Accordingly, we affirm his convictions.

                                  III.

      With regard to Williams’ sentence, we conclude that the

district court lacked jurisdiction to modify Williams’ sentence

from 480 months to 360 months, and thus it is the 480-month

sentence that we review.     Because we hold that the 480-month

sentence was unreasonable, we vacate that sentence and remand

for resentencing.

                                   A.

      Rule 35(a) of the Federal Rules of Criminal Procedure–the

provision upon which Williams relies to support the district

court’s   jurisdiction-provides    that      “[w]ithin   14   days   after

sentencing, the court may correct a sentence that resulted from

arithmetical, technical, or other clear error.”           Fed. R. Crim.

P. 35(a).    “‘[S]entencing’ means the oral announcement of the

sentence.”   Fed. R. Crim. P. 35(c); United States v. Layman, 116

F.3d 105, 108 (4th Cir. 1997).         The   district court’s authority

to modify a sentence under Rule 35(a) is “severely limited.”

Id.   “The rule ‘is not intended to afford the opportunity to

reconsider the application or interpretation of the sentencing

guidelines or for the court simply to change its mind about the

appropriateness of the sentence.’”           Id. (quoting Fed. R. Crim.

P. 35, Advisory Committee Notes on 1991 Amendments); see also

                                   9
United    States     v.   Fields,    552    F.3d      401,      405   (4th    Cir.      2009)

(“Congress limited the reach of Rule 35(a) because it wanted to

promote openness and finality in sentencing.”).

       Here, the district court orally announced Williams’ prison

sentence on January 21, 2015, and resentenced Williams six days

later because the court, “upon reflection,” changed its mind

about the ground for the upward departure and the appropriate

extent of the departure.             J.A. 52.          The district court lacked

the power to do so.         See Fields, 552 F.3d at 404-05; Layman, 116

F.3d at 108.         Because the 360-month sentence was issued without

jurisdiction, we therefore deem it to be of no effect and not

subject to appellate review.                The operative sentence for our

review is the 480-month sentence imposed on January 21, 2015.

                                           B.

       Williams      contends     that     the       district     court       abused      its

discretion in imposing the 480-month sentence.                        We agree.

       Under 18 U.S.C. § 3553(a), district courts must consider

“the nature and circumstances of the offense and the history and

characteristics        of   the     defendant,”           and   “impose       a    sentence

sufficient, but not greater than necessary, to comply with” the

statutory purposes of sentencing.                    Those purposes include “the

need     for   the    sentence    imposed        .    .    .    (A)    to    reflect     the

seriousness of the offense, to promote respect for the law, and

to   provide    just      punishment     for     the      offense;      (B)       to   afford

                                           10
adequate      deterrence     to     criminal    conduct;   (C)   to     protect        the

public from further crimes of the defendant; and (D) to provide

the defendant with needed educational or vocational training,

medical       care,    or   other    correctional      treatment      in    the    most

effective manner.”          18 U.S.C. § 3553(a)(2)(A)-(D).

       Generally       speaking,     the   district    court     must      begin       the

sentencing process with a correct calculation of the applicable

Guidelines range.           See Gall v. United States, 552 U.S. 38, 49

(2007).       “[T]he district court should then consider all of the §

3553(a) factors to determine whether they support [a particular]

sentence.”       Id. at 49-50.          “After settling on the appropriate

sentence,       [the    district     court]     must   adequately       explain        the

chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.”                     Id. at 50.         “The

farther the court diverges from the advisory guideline range,

the more compelling the reasons for the divergence must be.”

United States v. Hampton, 441 F.3d 284, 288 (4th Cir. 2006)

(internal quotation marks omitted).

       When     reviewing      the      substantive     reasonableness            of     a

sentence, we “examine the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding

that the sentence it chose satisfied the standards set forth in

§ 3553(a).”       United States v. Gomez–Jimenez, 750 F.3d 370, 383

(4th    Cir.     2014)      (internal      quotation    marks    and       alteration

                                           11
omitted).        And where, as here, the sentencing court has imposed

a   sentence      that     varies     upward       from       the    advisory         Guidelines

sentence, we must determine “whether the sentencing court acted

reasonably both with respect to its decision to impose such a

sentence and with respect to the extent of the divergence from

the sentencing range.”                United States v. Washington, 743 F.3d

938, 944 (4th Cir. 2014) (internal quotation marks omitted);

Gall,    552     U.S.     at   50.     We    “must       give    due      deference       to   the

district        court’s    decision        that    the    §     3553(a)         factors,      on   a

whole, justify the extent of the variance.”                               United States v.

Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007) (internal quotation

marks omitted).            “This deference is due in part because the

sentencing judge is in a superior position to find facts and

judge their import and the judge sees and hears the evidence,

makes    credibility           determinations,          has     full      knowledge      of    the

facts and gains insights not conveyed by the record.”                                      United

States     v.    Diosdado-Star,        630    F.3d       359,       366    (4th    Cir.     2011)

(internal quotation marks and alterations omitted).

      No   one     can     doubt     the    breadth      and     severity        of   Williams’

crimes.         And we cannot say at this juncture that a district

court’s decision to vary from the advisory Guidelines sentence

in some way and in some measure could not be justified by the §

3553(a)     factors.           However,     it     is    our     duty      to    consider      the

totality of the circumstances that led to the district court’s

                                              12
decision to impose a specific variant sentence, along with the

reasoned      basis     articulated     by      the    district       court      for    its

decision.       Having taken these things into consideration, we must

conclude that the district court abused its discretion.

       First, the extent of the variance was significant.                                The

Guidelines sentencing range for grouped Counts 1, 3, and 4 was

110-137    months’       imprisonment.          Although      it    would     not      alone

render    the    sentence    unreasonable,        we    note       that   the    adjusted

offense level for Count 1, which carried the highest adjusted

offense level for the group, had already taken into account the

fact   that     Williams    inflicted       serious     bodily       injury     upon    the

Dollar    General       victims.      By    imposing        the    statutory      maximum

sentences on Counts 1 and 4, removing Count 3 from the group,

and    imposing     a    consecutive       instead     of    concurrent         statutory

maximum sentence on Count 3, the district court imposed a total

sentence (360 months) for the grouped counts that was more than

2 1/2 times the top of the advisory range, before adding the

mandatory minimum 10-year term on Count 2.                    The end result was a

40-year    sentence      that   was   more      than   18    1/2     years      above   the

maximum advisory Guidelines sentence for all offenses.

       Second, while we would normally be required to give due

deference to a district court’s application of the § 3553(a)

factors    and    its     concomitant       determination          that   the     variant

sentence imposed was sufficient, but not greater than necessary,

                                           13
to   comply     with       the       purposes         set     forth    in     §    3553(a),       such

deference is largely unwarranted under the unusual circumstances

of this case.          Here, the district court’s determination, while

ostensibly         grounded          in    the        § 3553(a)       factors,      was     clearly

affected      by    other        matters.              The    record     of       the   sentencing

proceeding clearly conveys an unusually high degree of emotion,

no   doubt     ignited          by    the       district       court’s       displeasure          with

Williams’     decision          not       to    allocute,       and    then       fueled     by    the

allocutions that were offered by the Dollar General victims.

And contrary to the district court’s belief at the time, our

reading of the record does not automatically cause us to reject

Williams’ professed remorse for his actions.                                   As the district

court would later admit, the sentencing hearing was at least in

some    measure      tainted          by    “the       fast    moving       way    in     which   the

hearing went[,] dominated by the allocution,” so as not to allow

“enough time to think about what an appropriate upward departure

would    be,”       J.A.    53,           and    by     its    misinterpretation            of     the

presentence report and failure to understand that it could have

varied on the count that most troubled the court – Williams’ use

of the firearm to shoot the victims.                                  Although the district

court’s change of heart alone does not suffice to establish the

unreasonableness           of     the       sentence,         the     events       that    occurred

during the “resentencing” hearing do confirm our concerns about

the sentence that was imposed at the first sentencing hearing.

                                                   14
       To conclude, we are unable to say on the existing record

that the district court “acted reasonably both with respect to

its decision to impose [the variant] sentence and with respect

to    the   extent    of   the    divergence          from    the   sentencing        range.”

Washington, 743 F.3d at 944 (internal quotation marks omitted).

Nor    would    our   doing      so   in   these        circumstances          “promote     the

perception      of    fair       sentencing.”             Gall,     552        U.S.   at    50.

“Inherent in the concept of reasonableness is the notion that

the rare sentence may be unreasonable, and inherent in the idea

of discretion is the notion that it may, on infrequent occasion,

be abused.”          United States v. Howard, 773 F.3d 519, 536 (4th

Cir.    2014)    (internal       quotation        marks       omitted).          “This     case

presents an example of that rare sentence presented to us on

those infrequent occasions.”               Id.        Accordingly,        we     vacate     the

480-month       sentence         imposed         by     the     district          court      as

substantively unreasonable.                In light of the circumstances, we

also think a fresh start is in order.                           Accordingly, we will

remand the case to a different district judge for resentencing.

                                            IV.

       For the foregoing reasons, we affirm Williams’ convictions,

vacate his sentence as unreasonable, and remand for resentencing

before a different district judge.

                                             AFFIRMED IN PART; VACATED IN PART
                                                AND REMANDED WITH INSTRUCTIONS


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