                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4250


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DIANE CONWAY HUTCHISON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00004-MR-DLH-1)


Submitted:   October 23, 2013             Decided:   November 6, 2013


Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Diane    Conway      Hutchison            appeals    the     twenty-one      month

sentence imposed after she pled guilty to one count of wire

fraud, in violation of 18 U.S.C. § 1343 (2006).                                The district

court imposed this sentence after departing upward one criminal

history category pursuant to U.S. Sentencing Guidelines Manual

(USSG) § 4A1.3 (2012), based on its conclusion that Hutchison’s

criminal     history      category       of       I    underrepresented          her     prior

criminal conduct.          Hutchison argues on appeal that the district

court procedurally erred in failing to address her arguments

against the departure and substantively erred in relying on an

inaccurate     factual       premise         to    support       the     departure.        We

conclude      that     Hutchison’s            claims           are      meritorious,       and

accordingly vacate her sentence and remand for resentencing.

            We review a sentence for procedural and substantive

reasonableness under an abuse of discretion standard.                                 Gall v.

United    States,    552     U.S.      38,    51       (2007).       The      same    standard

applies    whether     the      sentence          is    “inside,       just    outside,     or

significantly outside the Guidelines range.”                             United States v.

Rivera-Santana,        668      F.3d    95,        100-01       (4th     Cir.)       (internal

citation and quotation marks omitted), cert. denied, 133 S. Ct.

274   (2012).        In      determining          procedural         reasonableness,        we

consider    whether       the    district         court     properly       calculated      the

defendant’s     advisory        Guidelines            range,     gave    the     parties    an

                                              2
opportunity to argue for an appropriate sentence, considered the

18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on

clearly erroneous facts, and sufficiently explained the selected

sentence.        Gall, 552 U.S. at 49-51.                 In reviewing any sentence

outside the Guidelines range, the appellate court must give due

deference     to      the    sentencing     court’s       decision       because    it   has

“flexibility in fashioning a sentence outside of the Guidelines

range,” and need only “set forth enough to satisfy the appellate

court that it has considered the parties’ arguments and has a

reasoned basis” for its decision.                     United States v. Diosdado-

Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Gall, 552 U.S.

at 56); see also United States v. Carter, 564 F.3d 325, 328 (4th

Cir.     2009)     (sentencing        court       “must    make     an    individualized

assessment based on the facts presented”) (citation and emphasis

omitted).

             Hutchison        first       contends     that    the       district    court

failed to comply with the mandate of Gall and United States v.

Lynn, 592 F.3d 572, 581 (4th Cir. 2010), that the sentencing

court    address       the    defendant’s         non-frivolous         arguments    for   a

sentence within the Guidelines range.                         The Government argues

that the sentence is procedurally reasonable and that any error

by     the   district        court    was     harmless.           The    district     court

recognized       that       Hutchison’s       criminal       history       was     properly

determined       in     category      I     because       Hutchison’s       seven    prior

                                              3
embezzlement convictions could not be counted separately.                                    USSG

§ 4A1.2(a)(2).            Other than noting that category I is the same

category    as      a    defendant     with    no    prior       criminal       history,      the

court’s explanation for its sentence did not address Hutchison’s

arguments against a departure.                  Nor did the court address those

arguments      at       any   other   point     in    the    sentencing         proceedings.

Thus, contrary to the Government’s assertions, we conclude that

the    court     procedurally         erred.         Further,         the     error    was    not

harmless, as there is no indication in the record that the court

would    have       imposed     the    same     sentence         if    it     had     addressed

Hutchison’s arguments.

               Hutchison       also    argues       that    the       court    substantively

erred in characterizing her seven prior embezzlement convictions

as    providing         repeated   opportunities           for    rehabilitation.             The

Government argues that this is merely a recharacterization of

the    procedural         argument    asserted       by     Hutchison,         and    that    the

court acted within its discretion in imposing the sentence.                                   We

conclude that, although Hutchison asserts this is a substantive

error,     the          district      court        procedurally             erred      in     its

characterization of Hutchison’s criminal history, specifically

that she “having been given repeated opportunities, simply did

not get the message.”                 The record reveals that Hutchison was

convicted in 1998 of seven counts of embezzlement arising from

her thefts from an employer over a seven-month period in 1994.

                                               4
Hutchison apparently pled guilty and was sentenced for all seven

counts on the same day.                      Thus, contrary to the district court’s

statement,          Hutchison          did    not    have       repeated     opportunities           to

learn       from       her     prior     crimes,         and     the     court    relied       on    an

inaccurate factual basis for its departure.

                  The Government argues that the sentence is reasonable

based       on     the       district        court’s       reference       to     the       § 3553(a)

factors.               The   court      did     not,       however,       impose        a    variance

sentence, but a departure sentence.                             Although the court invoked

certain § 3553(a) factors, nowhere in its explanation did the

court       state       that,    even    without          the    departure,      it     would      have

imposed       the       same     sentence       as       an     upward    variance          from    the

Guidelines range.

                  We    therefore       vacate      Hutchison’s          sentence       and    remand

for resentencing. *               We dispense with oral argument because the

facts       and    legal       contentions          are    adequately       presented         in    the

materials         before        this    Court       and    argument       would    not       aid    the

decisional process.

                                                                          VACATED AND REMANDED




        *
       Having found procedural error, we express no opinion on
the substantive reasonableness of Hutchison’s sentence.        On
remand, the district court is free to determine whether a
sentence outside the calculated Guidelines range is appropriate.



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