                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4179


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LINWOOD BATTS, JR.,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cr-00064-BO-1)


Submitted:    January 30, 2009              Decided:   March 13, 2009


Before NIEMEYER, TRAXLER, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished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


Kelly L. Greene, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Linwood Batts, Jr. pled guilty pursuant to a written

plea agreement to one count of conspiracy to possess with the

intent     to    distribute             cocaine,          in    violation          of     21       U.S.C.

§ 841(a)(1), 846 (2000), and one count of carrying a firearm in

furtherance       of    a    drug       trafficking            crime,    in    violation           of    18

U.S.C.     § 924(c)(2000).                     He     was      sentenced        to      57      months’

imprisonment       on       the        drug      conspiracy           conviction          and      to     a

consecutive sentence of 168 months’ imprisonment on the firearm

conviction,        for           an     aggregate           sentence          of     225        months’

imprisonment.               On        appeal,       Batts       challenges         his       sentence,

alleging    that       the       Government          breached      the    plea       agreement           by

moving for an upward departure on the drug conspiracy conviction

and that his sentence is unreasonable.                                  For the reasons that

follow,    we     affirm          Batts’        sentence        for     the    drug       conspiracy

conviction, but vacate his sentence for the firearm conviction

and remand for resentencing.

            A defendant alleging the Government’s breach of a plea

agreement       bears    the          burden    of       establishing         that      breach      by    a

preponderance of the evidence.                        United States v. Snow, 234 F.3d

187, 189 (4th Cir. 2000).                           Where a party raises the alleged

breach for the first time on appeal, we review for plain error.

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997).

Accordingly,       Batts          must     not        only      establish          that      the     plea

                                                     2
agreement       was    breached,        but   also     that    “the   breach     was   ‘so

obvious and substantial that failure to notice and correct it

affect[ed] the fairness, integrity or public reputation of the

judicial proceedings.’”             Id. at 66 & n.4 (quoting United States

v. Fant, 974 F.2d 559, 565 (4th Cir. 1992)).

            “It       is    well-established          that    the   interpretation      of

plea agreements is rooted in contract law, and that ‘each party

should receive the benefit of its bargain.’”                          United States v.

Peglera, 33 F.3d 412, 413 (4th Cir. 1994) (quoting United States

v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993)).                               “A central

tenet of contract law is that no party is obligated to provide

more     than    is        specified     in     the    agreement       itself.”        Id.

“Accordingly, in enforcing plea agreements, the government is

held only to those promises that it actually made,” and “the

government’s duty in carrying out its obligations under a plea

agreement       is    no     greater      than       that     of    ‘fidelity     to   the

agreement.’”          Id. (quoting United States v. Fentress, 792 F.2d

461, 464 (4th Cir. 1986)).

            We       have    reviewed     the     record      and   conclude    that   the

Government did not breach the plea agreement by moving for the

upward    departure          on   the    drug     conspiracy        conviction.        The

agreement contained no provision prohibiting the Government from

moving for an upward departure.                       Moreover, under the express

terms of the agreement, the Government was allowed to present to

                                              3
the district court at sentencing evidence or information under

18 U.S.C. § 3661.           The upward departure motion, which was based

on   Batts’          conduct      during    the        drug    conspiracy       and    past

involvement         in   crimes    of    violence,       was    consistent      with   this

provision.          Accordingly, because the Government did not breach

the plea agreement, we discern no plain error.

               Batts     also   challenges        as    unreasonable      his   168-month

sentence for the firearm conviction.                          In imposing a sentence

after United States v. Booker, 543 U.S. 220 (2005), a sentencing

court must engage in a multi-step process.                       First the court must

correctly determine the applicable sentencing range prescribed

by the Guidelines.              United States v. Hernandez-Villanueva, 473

F.3d 118, 122 (4th Cir. 2007).                     The court must then consider

whether    a        sentence    within     this    advisory       range    “serves      the

factors set forth in [18 U.S.C.] § 3553(a) and, if not, select a

sentence       [within      statutory      limits]        that    does     serve       those

factors.”       United States v. Green, 436 F.3d 449, 456 (4th Cir.

2006).

               In    selecting     a    sentence       that    serves   § 3553(a),      the

district       court      should        consider        whether     a     departure      is

appropriate based on the Guidelines Manual or relevant case law.

United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).

If an “appropriate” basis for departure exists, the district

court may depart, but if the resulting departure range still

                                             4
does not serve the § 3553(a) factors, the court may elect to

impose a non-Guidelines sentence.                       Id.

             Our      review       of        a     post-Booker         sentence         is     for

reasonableness,        which        includes            procedural         and     substantive

components.        “A sentence may be procedurally unreasonable . . .

if   the    district      court     provides             an   inadequate         statement     of

reasons     or    fails     to   make        a    necessary         factual      finding.       A

sentence may be substantively unreasonable if the court relies

on   an    improper       factor        or       rejects      policies       articulated       by

Congress or the Sentencing Commission.”                             Id. at 434.         When we

review a sentence outside the advisory sentencing range, whether

the product of a departure or a variance, we consider 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.”                                Hernandez-

Villanueva, 473 F.3d at 123.

             In    this     case,        after        hearing       testimony       concerning

Batts’ involvement in prior crimes of violence, the district

court      upwardly    departed          on       the     sentence      for       the     firearm

conviction,        concluding       that          the     “facts”      and       Batts’      “long

exposure to violent predatory crime” warranted the departure.

The court then sentenced Batts to 168 months’ imprisonment for

the firearm conviction, double the advisory Guidelines sentence

of 84 months’ imprisonment.

                                                  5
            If a district court concludes that an upward departure

is   warranted        for    a     defendant         with    a    Category       VI    criminal

history, the Sentencing Guidelines provide that the court is 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       a     [G]uideline          range

appropriate       to    this        case.”           USSG     § 4A1.3(a)(4)(B).               The

sentencing court should “move to successively higher categories

only upon a finding that the prior category does not provide a

sentence    that        adequately         reflects         the       seriousness       of     the

defendant’s criminal conduct.”                   United States v. Cash, 983 F.2d

558, 561 (4th Cir. 1992).

            Batts       contends          that       is     sentence      is     procedurally

defective       because           the     district          court       failed        to      move

incrementally through the sentencing table.                            Batts also contends

that the district court did not adequately explain the factors

underlying its upward departure.

            Although          the       district          court    discussed          with    the

Government’s counsel at sentencing the various sentencing ranges

that would result at various offense levels, it did not move

incrementally         through       the    sentencing         table      in    imposing       the

sentence for the firearm conviction.                         Instead, the court simply

stated    its    view       that    a   “sentence         that    is    double    what       would

otherwise be the mandatory minimum” was warranted.                                Although a

                                                 6
sentencing         judge    imposing       a   Guidelines        departure       need   not

“explain its rejection of each and every intervening level,”

United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007), we

conclude that the district court’s approach in this case falls

short of that outlined in USSG § 4A1.3(a)(4)(B).

              Further, as we explained in Moreland, in sentencing

post-Booker,         the     district      court    must        explain    the     reasons

underlying the sentence it imposes, “particularly explaining any

departure or variance from the [G]uidelines range.”                              Moreland,

437 F.3d at 432.            The court’s explanation “must be tied” to the

§ 3553(a)      factors       and    be    accompanied      by    appropriate       factual

findings.           Id.     If    the    district   court       articulates      plausible

reasons underlying the variance that are tied to § 3553(a), the

sentence imposed will generally be deemed reasonable.                             See id.

at 434.       However, where the variance imposed is a “substantial

one   .   .   .,     we    must    more   carefully     scrutinize        the    reasoning

offered by the district court” in support of that sentence.                             Id.

Indeed,       the     further      the    court     departs       from    the     advisory

Guidelines range, the more “compelling” the reasons underlying

the departure need be.                  See id.; United States v. Evans, 526

F.3d 155, 166 (4th Cir. 2008) (where a district court decides

that an outside-Guidelines sentence is warranted, it must ensure

that the justification is sufficiently compelling to support the

degree of variance).

                                               7
            Here, the sentence the district court imposed for the

firearm conviction is twice the advisory Guidelines sentence.

We    conclude     that    the    district     court’s      explanation    for     the

sentence    is   devoid     of    the    “compelling”       reasons   necessary        to

justify the upward departure.              Although the court’s explanation

for the sentence permissibly focused on Batts’ “long exposure to

violence predatory crime,” it is unclear from this statement

what crimes or conduct the district court took into account in

selecting the 168-month sentence.

            Batts’ criminal record included juvenile convictions,

adult convictions for possession of stolen goods, fleeing in a

motor   vehicle     to    elude    police,     and   criminal     possession      of   a

weapon, as well as host of other arrests.                      At sentencing, the

district court heard testimony concerning Batts’ involvement in

prior instances of violence criminal conduct, including shoots,

murders,    robberies,      home    invasions,       and    his   possession     of     a

stolen weapon, for which he was not successfully prosecuted.

Although a district court may properly consider similar adult

criminal conduct not resulting in a criminal conviction, USSG

§ 4A1.3(a)(2)(E),         as      well    as     the       factual    circumstances

underlying prior arrests, United States v. Dixon, 318 F.3d 585,

591 (4th Cir. 2003), in deciding to depart, the district court

did   not   move    incrementally        through     the    sentencing    table    and

failed to explain why it selected the 168-month sentence from

                                           8
other       available   sentencing        options.           Accordingly,      we   vacate

Batts’       sentence   for       the    firearm       conviction      and    remand   for

resentencing       with       a    more       “rigorous       sentencing       analysis.”

Dalton, 477 F.3d at 200. *

               Therefore,     we       affirm       Batts’   sentence    for    the    drug

conspiracy conviction.             However, we vacate the sentence for the

firearm conviction and remand for resentencing.                               We dispense

with oral argument because the facts and legal contentions are

adequately       presented        in    the   materials       before    the    court   and

argument would not aid the decisional process.



                                                                  AFFIRMED IN PART;
                                                       VACATED AND REMANDED IN PART




        *
       Given this disposition, we do not reach Batts’ challenge
to the substantive reasonableness of his sentence. We emphasize
in this regard that our disposition should not be read as
indicating any view as to the appropriateness of the sentence
imposed.    Thus, the district court, on remand, retains the
discretion to reimpose the same sentence or to select an
alternate one.



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