                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2007

USA v. Baymon
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1668




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NON-PRECEDENTIAL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



   *
    The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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


   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.
                                             2
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.


   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.
                                              3
                                            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

                                            4
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.




                                              5
