                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4181


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WALTER ROBERT HAWES,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:05-cr-00267-PMD)


Argued:   October 31, 2008                 Decided:   January 30, 2009


Before WILKINSON and GREGORY, Circuit Judges, and Martin K.
REIDINGER, United States District Judge for the Western District
of North Carolina, sitting by designation.


Affirmed by unpublished opinion.      Judge Reidinger wrote       the
opinion, in which Judge Wilkinson and Judge Gregory joined.


ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, South Carolina, for Appellant.      Michael
Rhett DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.     ON BRIEF: Reginald I. Lloyd,
United States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
REIDINGER, District Judge:

      After pleading guilty to the charge of identity fraud in

violation of 18 U.S.C.A. § 1028(a)(7) and (b)(1)(D) (West 2000 &

Supp. 2008), the Defendant Walter Robert Hawes was sentenced to

120   months’     imprisonment.              Hawes    appeals,     arguing     that      his

sentence is substantively unreasonable.                       Finding no abuse of

discretion by the district court, we affirm.



                                              I.

      In 1995, Hawes was one of four roommates sharing a house in

Charleston, South Carolina.              After he abruptly moved out, it was

discovered that Hawes had stolen the Social Security card, birth

certificate, and personal checks of one of his roommates, Robert

Burke,    and   had     cashed       those    checks,      receiving       approximately

$2,000.00.        It    was     also    discovered         that    Hawes    had     stolen

personal    checks      from    another       roommate,     Gary    Elliot,        and   had

cashed those checks, receiving approximately $1,800.00.

      After stealing the personal checks of his roommates, Hawes

fled to North Carolina, where he obtained a driver’s license in

Burke’s    name     using      the    stolen       birth   certificate       and    Social

Security card.         While in North Carolina, Hawes incurred unpaid

medical    bills,      credit    card    debt,       telephone     bills,     and    cable

bills in Burke’s name.               Using Burke’s identity, Hawes married a

woman in North Carolina, fathered a child, and incurred child

                                              2
support obligations.             Hawes subsequently abandoned this family

and    moved   back    to    South     Carolina,     where    he    fathered   another

child, still using Burke’s identity.                   When Hawes defaulted on

his child support obligations in North Carolina, there was an

attempt     to    garnish        Burke’s     wages    for     the     child    support

obligations incurred by Hawes using Burke’s identity.

       Hawes used Burke’s identity for more than a decade, and in

the process, destroyed Burke’s credit record.                      At the sentencing

hearing, Burke testified that he could never clean up his credit

report because once he corrected it, “new things would pop up

all the time.      So it was a never-ending nightmare.”                   J.A. 45.

       Burke and his wife suffered substantial inconvenience and

stress related to repairing his damaged credit record.                            Burke

testified that collection agencies have been calling him for

over a decade for unpaid bills that Hawes incurred in his name.

Burke testified that for several years, these calls occurred on

a daily basis.         Burke stated that collection agencies “aren’t

kind people” and that they did not believe him when he told them

that he was a victim of identity theft.                       J.A. 45-46.           As a

result, he testified, “it was impossible to stop that nightmare

from    happening.          It   was   an   incessant,      over    and   over,   daily

matter that happened for a decade.”                J.A. 46.

       Burke testified that due to his ruined credit history, he

had    to   pay   22   percent     interest     for   an     automobile     loan,    far

                                            3
higher than he should have paid given his actual credit history.

He further testified that he had to pay higher interest for

credit cards and that he could not be the primary borrower on

his home mortgage.          Burke’s credit history was so damaged that

he was forced to obtain a new Social Security number from the

Social Security Administration.

      Using Burke’s identity, Hawes was convicted of at least

three    felonies   and     was   incarcerated        in   state    prison.    Burke

testified that he was once denied a job because of the criminal

record     that   Hawes    had    compiled      in   his   name.     Burke    further

testified    that   he     lost   a   job    opportunity       at   another   company

which paid $20,000 more per year than his position at the time

because the company’s background check revealed the crimes that

Hawes had committed using Burke’s identity.                         Burke testified

that this criminal record had “a chilling effect on my career

over the past ten years because I’m afraid to leave jobs.”                         J.A.

50.     Burke testified that he was forced to travel to Raleigh to

get   fingerprinted,       and    state     authorities     had     to   compare   his

fingerprints to the fingerprints on every arrest record that

Hawes had compiled in his name.                  Despite Burke’s efforts, his

current job at Bank of America was delayed for more than one

month because of this erroneous criminal record.

      In    November      2004,   the     Secret     Service    located    Hawes    in

Ladson, South Carolina.            Hawes initially identified himself to

                                            4
the   Secret       Service      as    Robert      Burke,        and    he    provided       Burke’s

Social    Security         card      and   birth      certificate            as    proof    of     his

identity.           Ultimately,         Hawes      confessed          to     stealing       Burke’s

identity.         He explained that he had assumed Burke’s identity

because      he     previously        had        testified       for        the    state      in   an

attempted murder trial and he was scared.                              At the conclusion of

the   interview,          the     agents        advised     Hawes       that        he    would     be

indicted      and    that       he   would       receive    a    summons          to     appear    for

arraignment.

      Following his indictment in March 2005, Hawes absconded.

While    a    fugitive,         Hawes      continued       to     use       Burke’s       identity,

incurring over $4,000 in unpaid medical bills in Burke’s name.

Hawes committed additional identity theft by stealing the Social

Security card and birth certificate of his employer’s son, Eric

Beltz.       Using this stolen information, Hawes obtained a Georgia

driver’s license and incurred more than $5,000 in credit card

debt in Beltz’s name.

      In July 2006, Hawes was arrested by state authorities for

the theft of Beltz’s identity.                     At the time of his arrest, Hawes

was living in Summerville, South Carolina, with his common law

spouse,      Angel    Sollars.             A    search     of    the       residence       revealed

numerous          items      procured            through        fraud,            including        air

conditioners,             clothing,            jewelry,      tools,           and        electronic

appliances.         In an interview with the Secret Service following

                                                  5
his arrest, Hawes stated that he knew he was wanted by law

enforcement, but he fled because he was afraid of going to jail.

During     this   interview,      agents         described    the    harm    that     his

identity theft had caused Burke.                    Hawes responded that Burke

“didn’t have a very good life to begin with.”                   J.A. 62.



                                           II.

      On September 13, 2006, Hawes entered his plea of guilty to

the indictment.         A Presentence Report (PSR) was prepared, and

based upon a criminal history category of V and an offense level

of 12, the appropriate advisory Guidelines range was calculated

to be 27 to 33 months’ imprisonment.                    In the PSR, the probation

officer recommended an upward departure from the Guidelines or

an   upward    variance     under    18    U.S.C.A.       § 3553(a)    (West    2000    &

Supp. 2008).         Hawes did not file objections to any portion of

the PSR.

      Arguing     that      Hawes’        acts     of     identity    theft     caused

substantial harm and inconvenience to his victim, the government

moved for an upward departure based upon Application Note 19 of

U.S.S.G.      § 2B1.1   (2005).       The        government   also    moved     for    an

upward variance, arguing that the factors set forth in 18 U.S.C.

§ 3553(a) merited a sentence greater than the Guidelines range.

      At    the   sentencing        hearing,        the    district     court       heard

testimony     from    two   of   Hawes’     victims,       Robert    Burke   and    Eric

                                            6
Beltz, as well as Secret Service Agent Phil Carter.                        During his

testimony, Burke provided the district court with a detailed

list of all unpaid credit accounts obtained by Hawes that have

appeared on Burke’s credit reports, as well as a calculation of

the additional interest Burke has had to pay as a result of his

poor credit rating resulting from the identity theft.                            Burke

estimated     that    these    unpaid       bills      and     additional    interest

payments amounted to $18,541.00, although he noted that this

figure did not include the cost he had incurred in investigating

the   identity       theft.      Burke         estimated     that   he     has   spent

“thousands of hours” trying to repair his credit record.                          J.A.

46.

      Beltz   testified       that   his    parents      had    employed    Hawes   to

perform work on several rental houses.                  He testified that Hawes

had gained his parents’ trust over the years, and that they had

provided Hawes and his girlfriend financial assistance and had

showered them with gifts.            Beltz testified that Hawes stole his

identity for approximately two months and incurred approximately

$8,000 in credit card debt.                Beltz testified that because his

Social Security card is still missing, he has to “keep constant

check on my credit report.            And it’s just been a pain.                 A big

pain.”     J.A. 68.

      At   the   sentencing      hearing,        the   district     court    notified

Hawes that it was “strongly considering” an upward departure

                                           7
and/or variance, and the court continued the hearing to allow

the parties time to brief the issue.                      J.A. 38.        Following the

submission of briefs by both parties, the district court held a

second     sentencing       hearing.            After     hearing    arguments          from

counsel,     the     district      court    announced        that     it     found      the

government’s       motion    for   an   upward          departure    to    be    “clearly

warranted” pursuant to Application Note 19 of U.S.S.G. § 2B1.1.

J.A. 94.     Specifically, the district court found that Hawes had

caused substantial harm and inconvenience to Burke:

       To say that the victim in this case suffered
       substantial inconvenience is so understated, it would
       almost be laughable.    Inconvenience doesn’t begin to
       describe what . . . the victim suffered at the hands
       of this defendant.    Not only was his reputation and
       credit not repaired, they were destroyed, so much so
       that the victim, Mr. Burke, after years and hours of
       harassing telephone calls, trips to Raleigh, North
       Carolina, identifying fingerprints to separate himself
       from the crimes committed by the defendant, ultimately
       [had] to get up and get a new social security number
       because he could never, ever repair his credit record.

J.A.   95.     The    district      court       further     found    that       Hawes   had

committed crimes in Burke’s name, “to such a degree that the

people in the prison system, the lawful authorities dealing with

him, didn’t even known that he was doing so in the victim’s name

and identity.”       J.A. 96.      Finally, the district court found that

not only had Hawes assumed Burke’s identity, he had, through his

acts of theft, managed to “live[] the victim’s life more fully

than the victim did,” and the court noted that it did not know


                                            8
“of a single case that could be more egregious in that regard

. . . .”      Id.

       Having concluded that an upward departure was warranted,

the district court found that there was still “a need for an

upward variance in this case, simply because the facts are so

unusual      and    so   aggravating.”          J.A.   94.       Upon    reviewing    the

factors set forth in 18 U.S.C. § 3553(a), the district court

found the need for deterrence, the need for punishment, and the

need to protect the public from future crimes to be significant

factors in favor of an upward variance.                      Of particular import to

the district court was the fact that Hawes continued to use

Burke’s      identity     and    stole     the    identity       of     another   victim

following his indictment.                In the district court’s view, these

actions demonstrated a lack of remorse or contrition.                             In the

end,   the    district     court    concluded,         “I    don’t    think   there   are

enough       resources      in     the     federal          arsenal     to    accomplish

[rehabilitation] with this defendant.                   But what I do know is the

longer he’s incarcerated, the fewer opportunities he’ll have to

do this to anyone else.”                 J.A. 99.      Accordingly, the district

court sentenced Hawes to a term of imprisonment of 120 months.

This appeal followed.




                                            9
                                            III.

                                                A.

      In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,

160 L. Ed. 2d 621 (2005), the Supreme Court invalidated both 18

U.S.C.      § 3553(b)(1),          which     made       the           Sentencing       Guidelines

mandatory,        and    18   U.S.C.     § 3742(e),          which       required       appellate

courts      to    conduct     a   de     novo    review          of    departures       from      the

Guidelines.        543 U.S. at 260-62, 125 S. Ct. 738.                          As a result of

the   Booker       decision,       the     Guidelines            are     now    advisory,         and

appellate courts are limited to reviewing sentencing decisions

to determine whether such sentences are “reasonable.”                                    Gall v.

United States, 128 S. Ct. 586, 594, 169 L. Ed. 2d 445 (2007).

As    the        Supreme      Court       has        made     clear,           the     “appellate

‘reasonableness’ review” required by Booker “merely asks whether

the trial court abused its discretion.”                           Rita v. United States,

127 S. Ct. 2456, 2465, 168 L. Ed. 2d 203 (2007).

      Although          the   Guidelines        are     no       longer     mandatory,           they

remain “the starting point and the initial benchmark” for any

sentencing decision.              Gall, 128 S. Ct. at 596.                     Thus, in making

a sentencing determination, the district court should begin by

calculating        the     applicable      Guidelines            range.          Id.        As    the

Supreme      Court      has   recognized,        the        advisory       Guidelines         range

“reflect[s]        a     rough    approximation             of        sentences      that    might

achieve § 3553(a)’s objectives.”                      Kimbrough v. United                   States,

                                                10
128 S. Ct. 558, 574, 169 L. Ed. 2d 481 (2007).                           Consequently,

using     the     advisory     Guidelines       range    as    a    “starting        point

furthers        Congress’     desire     for    efficient      administration          and

nationwide consistency in sentencing.”                  United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007).

       Once the appropriate Guidelines range has been calculated,

the district court should give the parties “an opportunity to

argue for whatever sentence they deem appropriate.”                            Gall, 128

S. Ct. at 596.              The district court then should consider the

factors set forth in § 3553(a) to determine whether such factors

support the sentence requested by either party.                          Id.          Those

factors are as follows: (1) “the nature and circumstances of the

offense and the history and characteristics of the defendant”;

(2)   “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

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”; (3) “the kinds of sentences available”; (4)

the kinds of sentence and the sentencing range established for

“the applicable category of offense committed by the applicable

category of defendant as set forth in the guidelines” in effect

                                           11
at the time of sentencing; (5) “any pertinent policy statement

issued by the Sentencing Commission” which is in effect at the

time of sentencing; (6)            “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct”; and (7) “the need to provide

restitution     to       any    victims    of    the      offense.”           18    U.S.C.A.

§ 3553(a).     The statute further requires the sentencing court to

“impose a sentence sufficient, but not greater than necessary,

to comply with the purposes set forth in paragraph (2) of this

subsection.”       Id.

       In determining the appropriate sentence, the district court

“may    not   presume      that    the     Guidelines          range   is     reasonable.”

Gall,   128   S.     Ct.   at    596-97;    Rita,        127    S.   Ct.    at     2465     (“In

determining the merits of these arguments, the sentencing court

does    not   enjoy      the    benefit    of    a   legal      presumption        that     the

Guidelines sentence should apply.”).                       Rather, the court must

make    an    individualized         assessment,           based       upon      the      facts

presented,     and    determine      whether         a   sentence       outside        of   the

Guidelines is warranted.              Gall, 128 S. Ct. at 597.                         If the

district court decides to impose a non-Guidelines sentence, the

court then “must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the

degree of the variance.”             Id.    In Gall, the Supreme Court found



                                            12
“it uncontroversial that a major departure should be supported

by a more significant justification than a minor one.”                             Id.

       As the last step of the sentencing process, the district

court must provide an adequate explanation of its sentencing

decision     “to    allow       for    meaningful        appellate        review    and    to

promote the perception of fair sentencing.”                          Id.     The district

court    “must     give    serious      consideration        to   the      extent    of    any

departure from the Guidelines and must explain his conclusion

that    an   unusually      lenient      or    an   unusually       harsh     sentence     is

appropriate         in      a         particular          case       with        sufficient

justifications.”           Id.    at    594.        In   explaining        its   sentencing

decision,     a    district      court    is    not      required    to     “discuss      each

factor set forth in § 3553(a) in checklist fashion”; rather, “it

is enough to calculate the range accurately and explain why (if

the sentence lies outside it) this defendant deserves more or

less.”       United States v. Moreland, 437 F.3d 424, 432-33 (4th

Cir. 2006)(quoting United States v. Dean, 414 F.3d 725, 729 (7th

Cir. 2005)) (internal quotation marks omitted).

       On appeal, this Court reviews the reasonableness of the

sentence imposed, whether the sentence is inside or outside the

Guidelines        range,    “under       a     deferential          abuse-of-discretion

standard.”        United States v. Abu Ali, 528 F.3d 210, 260 (4th

Cir. 2008) (quoting Gall, 128 S. Ct. at 591), pet. for cert.

filed, 77 U.S.L.W. 3242 (Oct. 6, 2008).                          This review involves

                                              13
two    steps.             First,        we    must     examine        the       sentence        for

“significant” procedural errors, such as “failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines      as    mandatory,             failing    to    consider          the    § 3553(a)

factors,      selecting       a       sentencing       based     on       clearly      erroneous

facts, or failing to adequately explain the chosen sentence –

including an explanation of the Guidelines range.”                                Gall, 128 S.

Ct. at 597.

       If the district court’s decision is procedurally sound, we

then consider whether the sentencing decision is substantively

reasonable.          In    conducting          this    review,      we     must       “take   into

account the totality of the circumstances, including the extent

of any variance from the Guidelines range.”                               Id.      “Under this

approach,     the    applicable          guidelines         range     plays      an     important

role.”     Abu Ali, 528 F.3d at 261.                   If the sentence is within the

Guidelines      range,        we        may     presume      that         the     sentence       is

reasonable, although such a presumption is not required.                                      Gall,

128 S. Ct. at 597.           If the sentence is outside of the Guidelines

range,     however,          we       “may      not     apply         a     presumption         of

unreasonableness.”                Id.         “To    hold    otherwise          would     fatally

undermine the Court’s holding in Booker.”                             Pauley, 511 F.3d at

473.     In    reviewing          a   non-Guidelines         sentence,          the    appellate

court “may consider the extent of the deviation, but must give

due    deference      to      the       district       court’s        decision         that     the

                                                14
§ 3553(a)       factors,       on    a    whole,        justify       the    extent       of        the

variance.”       Gall, 128 S. Ct. at 597.                       “Even if we would have

reached    a    different       sentencing            result    on    our    own,       this    fact

alone    is    ‘insufficient         to        justify    reversal          of    the    district

court.’”       Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at

597).

     As       always,    when        considering          the        reasonableness            of     a

sentence, we review the district court’s legal conclusions de

novo and its factual findings for clear error.                                    Abu Ali, 528

F.3d at 261.



                                                B.

     The       first    step    in       our    review     of    Hawes’          sentence      is    a

determination of whether there were any significant procedural

errors.

     Hawes       concedes       that       the        district       court        committed          no

procedural errors in determining his sentence. 1                             The parties are

in agreement that the district court properly calculated the

     1
       We note that the district court did not offer Hawes an
opportunity to allocute until after the court began to impose
sentence.   Failure to afford a defendant the opportunity to
allocate is reversible error where it can be shown that an
exercise of the right of allocution could have resulted in a
lesser sentence.   See United States v. Muhammad, 478 F.3d 247,
249-50 (4th Cir. 2007). Hawes does not challenge this aspect of
his sentencing, however, and therefore, we consider this issue
to have been waived on appeal.



                                                 15
Guidelines range to be 27 to 33 months’ imprisonment.                Upon

calculating the applicable Guidelines range, the district court

advised Hawes that it was considering an upward variance and/or

departure and afforded the parties ample opportunity to argue

their respective positions on the issue.            The district court

then considered the relevant Guideline departure provisions and

the § 3553(a) sentencing factors and determined that the unique

facts and circumstances of the case were sufficiently compelling

to justify a sentence outside of the Guidelines. 2          Further, the

district     court   provided   an    adequate    explanation   of   its

sentencing    decision    through    its   oral   remarks   during    the

sentencing hearing.      Accordingly, we conclude that the sentence

imposed on Hawes was procedurally sound.



                                     C.

     Having found no significant procedural errors, we now must

determine whether the sentence is substantively reasonable.




     2
       While this Court previously has required a sentencing
court to calculate a Guidelines departure sentence before
considering the imposition of a variance sentence, see Moreland,
437 F.3d at 432, this two-step process no longer appears
necessary under Gall, which merely requires the sentencing court
to “consider the extent of the deviation and ensure that the
justification is sufficiently compelling” to support a non-
Guidelines sentence. 128 S. Ct. at 597.



                                     16
      Since    Booker,       the    Supreme      Court    has       stressed    that   the

district      court’s     sentencing        decisions         are    entitled    to    due

deference and should be overturned only where the district court

has abused its discretion.                See Rita, 127 S. Ct. at 2465; Gall,

128 S. Ct. at 597.              In Gall, the Supreme Court rejected the

proposition     that     the    district       court     must    apply     a   heightened

standard of review to sentences outside the Guidelines range.

Gall, 128 S. Ct. at 595.                   In so doing, the Court explicitly

rejected       any      rule       that      would       require         “extraordinary”

circumstances to justify a sentence outside the Guidelines range

or which would use a “rigid mathematical formula” as a “standard

for determining the strength of the justifications required for

a specific sentence.”            Id.      The Court stressed that “the abuse-

of-discretion standard of review applies to appellate review of

all    sentencing       decisions      –    whether      inside       or   outside     the

Guidelines range.”           Gall, 128 S. Ct. at 596 (emphasis added).

      This    deferential          standard      of   review        requires    appellate

courts to recognize that, for any given case, there is a range

of    permissible      sentences       which      may    be     deemed     substantively

reasonable.      “[T]here is not a single reasonable sentence but,

rather, a range of reasonable sentences.                      Consequently, reversal

will result if – and only if – the sentencing court’s ultimate

determination        falls     outside     the   expansive       boundaries      of    that

universe.”      United States v. Martin, 520 F.3d 87, 92 (1st Cir.

                                            17
2008) (citation omitted).            “A sentencing court abuses or exceeds

its discretion when its decision . . . cannot be located within

the range of permissible decisions.”                  United States v. Cutler,

520 F.3d 136, 157 (2d Cir. 2008)) (quoting United States v.

Canova, 485 F.3d 674, 679-80 (2d Cir. 2007)) (internal quotation

marks    omitted).         Because      there    is   a   range   of    permissible

outcomes for any given case, an appellate court must resist the

temptation to “pick and choose” among possible sentences and

rather must “defer to the district court’s judgment so long as

it     falls    within     the   realm     of     these    rationally     available

choices.”       United States v. McComb, 519 F.3d 1049, 1053 (10th

Cir. 2007), cert. denied, 128 S. Ct. 1917, 170 L. Ed. 2d 778

(2008); see also United States v. Carter, 538 F.3d 784, 790 (7th

Cir.    2008)    (noting    substantive        reasonableness     “contemplates    a

range, not a point”).

        Appellate     courts     also    “must    give    due   deference    to   the

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

whole, justify the extent of the variance.”                 Gall, 128 S. Ct. at

597.     Such deference is justified because a district judge “is

in a superior position to find facts and judge their import

under § 3553(a) in the individual case.                     The judge sees and

hears the evidence, makes credibility determinations, has full

knowledge of the facts and gains insights not conveyed by the

record.”       Id.   “It is not for the Court of Appeals to decide de

                                          18
novo whether the justification for a variance is sufficient or

the sentence reasonable.”             Id. at 602.

      Of course, the high degree of deference afforded a district

court’s    sentencing      decision        does    not     render         appellate       review

meaningless.         “Gall      did    not      substitute        a     regime      of    total

unreviewability for the fallen regime of Guidelines rigidity.”

Abu Ali, 528 F.3d at 266.                  As this Court stated in Moreland,

“‘reasonableness’ is not a code-word for ‘rubber stamp.’”                                    437

F.3d at 433.         “The ‘totality of the circumstances’ substantive

reasonableness       calculus         demands      that      we       proceed       beyond     a

formalistic review of whether the district court recited and

reviewed    the   § 3553(a)          factors      and    ensure       that    the    sentence

caters    to   the    individual        circumstances         of      a    defendant,        yet

retains    a   semblance        of    consistency         with     similarly         situated

defendants.”      Evans, 526 F.3d at 167 (Gregory, J., concurring).

Such review is to ensure that the district court has not merely

provided “lip service” to the § 3553(a) factors, but rather has

given     reasonable      weight      to    such        factors    as      the     individual

circumstances of the case require, so as to achieve the purposes

of   sentencing      as   set   forth      in     § 3553(a),       and       has    not   given

weight to improper factors.                With these principles in mind, we

now turn to the sentence imposed upon Hawes in the present case.




                                             19
                                              D.

                                              1.

       In   his    appellate     brief,        Hawes    first     contends     that   the

district court erred in failing to justify adequately the extent

of    its   departure     from    the     top      of   the   applicable      Guidelines

range.      Specifically, Hawes relies upon United States v. Dalton,

477 F.3d 195 (4th Cir. 2007), in support of his argument that

the    district     court    failed      to     adopt    an     incremental     approach

through the criminal history categories or offense levels to

reach the appropriate sentence.

       In Dalton, this Court remanded for re-sentencing on the

grounds that the district court in upwardly departing from the

Guidelines        range   did    not     “employ        the     incremental     approach

dictated by [U.S.S.G.] § 4A1.3(a)(4)(B).”                        Id. at 199.          This

Guidelines     provision        governs       upward    departures     from     Criminal

History Category VI and requires district courts to “structure

the departure by moving incrementally down the sentencing table

to the next higher offense level in Criminal History Category VI

until it finds the guidelines range appropriate to the case.”

Id.    Dalton is not binding in the present case, however, as the

district court which sentenced Hawes did not base its decision

for upward departure upon § 4A1.3(a)(4)(B), nor was Hawes within

Criminal     History      Category      VI.        As   such,    Hawes’    reliance    on

Dalton is simply misplaced.

                                              20
                                            2.

       Hawes further argues in his brief to this Court that the

district court’s sentence is “unreasonable on its face” because

the variance imposed was 264% above the applicable Guidelines

range.     The Supreme Court in Gall, however, explicitly rejected

the use of such a “rigid mathematical formula . . . as the

standard      for     determining     the   strength      of    the    justifications

required for a specific sentence.”                  128 S. Ct. at 595.             Thus,

the   fact     that    a   sentence    is   200%,    or     even     300%,    above    the

Guidelines range does not render a sentence unreasonable per se.

Rather, as the Supreme Court instructed, the relevant inquiry is

whether the justification for such deviation is “sufficiently

compelling to support the degree of the variance.”                           Id. at 597.

As    such,    the    fact   that     Hawes’     sentence      was    well    above    the

Guidelines’ range, while relevant, does not of itself render the

district court’s decision substantively unreasonable.



                                            3.

       Finally, Hawes argues that the district court’s sentence

creates       an     unwarranted      disparity     among       similar       defendants

convicted      of     similar   crimes,     and    that   this       disparity    is    so

severe that it requires that his sentence be vacated.                             In so

arguing, Hawes points this Court to a recent data report of the

Sentencing Commission detailing the median sentence and median

                                            21
departure in identity fraud cases nationwide since the Supreme

Court’s decisions in Gall and Kimbrough.                           The fact that Hawes’

sentence may be more severe than the average sentence imposed in

identity     fraud     cases    nationally         does      not    establish       that    the

district court’s sentence in the present case failed to address

the “need to avoid unwarranted sentence disparities” recognized

in     § 3553(a)(6).           That     is       not    to    say     that      statistical

information      is     never    relevant         to    the        sentencing      calculus;

indeed, it is precisely this type of information –- the typical

sentencing      range    for     the     typical        defendant       charged      with    a

particular offense -- which the Sentencing Guidelines themselves

seek to provide.         “[B]y devising a recommended sentencing range

for    every    type    of     misconduct         and    every       level    of    criminal

history, the Guidelines as a whole embrace ‘the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.’”                              United

States v. Johnson, 445 F.3d 339, 343 (4th Cir. 2006) (quoting 18

U.S.C. § 3553(a)(6)).

       The     determination       of       an    appropriate         sentence       in     any

particular      case    requires       an    individualized          assessment       of   the

facts and circumstances presented by that particular defendant.

While Hawes argues that the Court should consider statistical

data    regarding       the     median       sentence        imposed     on        defendants

convicted of similar crimes in reviewing his sentence, such data

                                             22
does   not   provide    the   particulars        of    the   defendants     who   were

sentenced and the crimes they committed.                     As such, this data

does not provide the information necessary to determine whether

the defendants who received such sentences are truly comparable

to the defendant at hand.            As this Court found in United States

v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), a defendant should be

compared only to other defendants with similar circumstances and

histories.        Id.   at   267.      Because      the   Court    cannot    possibly

determine    the    circumstances      and    histories      of    each    individual

defendant whose sentences comprise this statistical information,

the assignment of dispositive weight to this type of data would

be antithetical to the notion of the individualized assessment

required for fashioning an appropriate sentence for a particular

defendant.

       In imposing Hawes’ sentence, the district court calculated

the    advisory    Guidelines       range,    but     ultimately   concluded      that

this case fell “outside the heartland” of those cases to which

the advisory Guidelines range was intended to apply.                        See Rita,

127 S. Ct. at 2465.          Indeed, the district court found that this

case warranted both a departure under Application Note 19 of

U.S.S.G. § 2B1.1 and a variance under § 3553(a).                          Application

Note 19 provides that an upward departure may be warranted in an

identity fraud case where:



                                         23
          (I)          The offense caused substantial harm to the
                       victim’s reputation or credit record, or the
                       victim suffered a substantial inconvenience
                       related to repairing the victim’s reputation
                       or a damaged credit record.

          (II)         An individual whose means of identification
                       the defendant used to obtain unlawful means
                       of identification is erroneously arrested or
                       denied a job because an arrest record has
                       been made in that individual’s name.

          (III)        The defendant produced or obtained numerous
                       means of identification with respect to one
                       individual   and  essentially assumed  that
                       individual’s identity.

U.S.S.G. § 2B1.1, app. note 19(A)(vi).                        As the district court

properly found, all three elements were clearly satisfied in

this case.

       First,     there      can    be    no    doubt     that         Hawes’    actions     of

identity fraud caused substantial harm and inconvenience to his

victim.     In the more than ten years during which Hawes stole

Burke’s identity, Hawes incurred unpaid medical bills, credit

card   debt,      telephone        bills,      cable    bills,         and    child    support

obligations       in     Burke’s      name,      all    of    which          harmed    Burke’s

reputation       and    credit     record.          Burke’s       credit     record    was   so

damaged that Burke was forced to obtain a new Social Security

number.     Burke testified extensively regarding the substantial

inconvenience          and   stress      he    suffered      as    a    result    of    Hawes’

conduct.        Burke testified that he could never completely clean

up his credit report because “new things would pop up all the


                                               24
time.      So   it   was   a    never-ending     nightmare.”    J.A.   45.      He

described how “the collection agencies became the worst,” as

they continued to call him for over ten years for the unpaid

bills that Hawes incurred in his name.                   J.A. 45-46.         Burke

testified that for several years, collection agencies called him

at home and at work on a daily basis.                Burke estimated that he

spent “thousands of hours” trying to repair his credit record.

J.A. 46.

     Hawes’ actions also caused his victim financial hardship.

Burke testified that because his credit was destroyed, he had to

pay 22 percent interest for a car loan, far higher than he

should have paid.          Burke further testified that he had to pay

higher interest on credit cards, and he could not be the primary

borrower on his home mortgage.                 Based upon this evidence, the

district court did not err in concluding that Hawes had caused

substantial harm and inconvenience to his victim.

     Second, the evidence establishes that Hawes stole Burke’s

Social Security card and birth certificate, and that he used

these means of identification to obtain a driver’s license in

Burke’s name.         Hawes later committed numerous felonies using

Burke’s     identity,          and   he   was     arrested,    convicted,      and

incarcerated for these crimes.             As a result of the substantial

criminal record incurred in his name, Burke was denied a job

opportunity that would have paid him more than $20,000 more per

                                          25
year   than   he     had      been    earning       at    the   time.         Burke    further

testified     that      the     criminal      record      compiled       by    Hawes    had     a

chilling effect on his career over the past ten years because he

was afraid to leave jobs. Burke was forced to travel to Raleigh

to be fingerprinted so that state authorities could compare his

fingerprints       to    those       on    every    arrest      record    that    Hawes       had

caused authorities to open in Burke’s name.                              Despite Burke’s

efforts, his current job at Bank of America was delayed for more

than one month due to the existence of this criminal record.

       Third, the evidence reflects that Hawes obtained numerous

means of identification with respect to Burke and essentially

assumed his identity for more than a decade.                             Hawes obtained a

driver’s license in Burke’s name using stolen documents.                                 Using

Burke’s   identity,           Hawes       married    a    woman    in    North    Carolina,

fathered a child, and incurred child support obligations.                                Hawes

abandoned     this      family       and    moved    to   South    Carolina,          where   he

fathered another child with another woman while still pretending

to be Burke.       As Burke testified, “it wasn’t a case of him just

stealing my identity to get a credit card and spend[ing] a bunch

of money; he took on my identity.                    He was living as me in every

shape and form.”         J.A. 51.

       Based upon these facts, the district court was correct in

determining that an upward departure was warranted pursuant to

Application     Note       19    of       § 2B1.1.        “When    the    district       court

                                              26
imposes a non-Guidelines sentence based on a correct application

of the Guideline departure provisions, the resulting sentence

reflects     the    judgment    of    both     the     district       court   and   the

Commission     that    a     non-Guidelines         sentence     is    appropriate.”

Evans, 526 F.3d at 165 n.4.

      In    addition    to     finding      that     an    upward     deviation     was

justified pursuant to Application Note 19 of U.S.S.G. § 2B1.1,

the district court found that the § 3553(a) sentencing factors

as a whole justified a deviation from the Guidelines in this

case.      In so finding, the district court considered the specific

“nature      and    circumstances        of    the        offense,”     18    U.S.C.A.

§ 3553(a)(1).       Specifically, the district court found that Hawes

had   stolen    Burke’s    identity      for    more      than   a   decade   and   had

caused     Burke    substantial      harm     and    inconvenience       during     this

time.      The district court further considered the “history and

characteristics of the defendant.” Id.                    Of particular import to

the district court was the fact that Hawes absconded after his

indictment.        The district court was especially troubled by the

fact that Hawes not only continued to steal Burke’s identity

while he was a fugitive, but that he also stole the identity of

another person.        Additionally, when Hawes was finally arrested

and confronted by Secret Service agents, Hawes dismissed the

gravity of the harm he had inflicted upon Burke, stating that

Burke “didn’t have a very good life to begin with.”                           J.A. 62.

                                         27
The   district   court    found   that    Hawes’    actions       following     his

indictment showed a profound lack of remorse, and that the “need

for . . . deterrence in this case is greater than any case I’ve

seen in 11 years on the bench.”            J.A. 98.        The district court

further opined that “[t]here is no rehabilitation possible for

[a] person who so disdains his fellow man as to do what he’s

done over and over and over.”       J.A. 99.

      While Hawes does not contest that the district court was

entitled to depart from the Guidelines range in this case, he

argues that the extent of the deviation itself was unreasonable.

We cannot agree.         Based upon the unique facts presented, the

district    court    concluded    that     a   sentence      of    120     months’

imprisonment was necessary in order “to promote respect for the

law,” “to provide just punishment for the offense,” “to afford

adequate    deterrence,”    and   “to     protect    the    public       from   the

further crimes of the defendant.”          18 U.S.C.A. § 3553(a)(2).            We

find that the district court did not abuse its discretion in

this regard.        While we may have imposed a different sentence

than the one chosen by the district court, we cannot say that

the decision to impose a sentence of 120 months’ imprisonment

falls outside the range of rational choices available to the

court.     See Pauley, 511 F.3d at 474.             “Although the deviation

from the Guidelines range in this case clearly is significant,

the district court provided ‘significant justification’ for the

                                     28
degree of the deviation, which is all that is required.”                     Evans,

526 F.3d at 163 (affirming sentence of 125 months for defendant

convicted    of   identity    fraud,       where    sentence    constituted      300%

upward deviation from advisory Guidelines range).                       For these

reasons,    we    conclude    that     Hawes’      sentence     is   substantively

reasonable.



                                           IV.

     After careful review, we are satisfied that the district

court’s    decision   to     impose    a    non-Guidelines      sentence    of   120

months’     imprisonment      was     sufficiently        justified    under     the

circumstances.        Accordingly,         we    affirm   the   judgment    of   the

district court.

                                                                           AFFIRMED




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