                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4640


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLES THOMAS STRICKLAND, a/k/a C.T., a/k/a Tommy,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:06-cr-00045-BO-2)


Argued:   October 29, 2009                 Decided:   January 21, 2010


Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Joseph Edward Zeszotarski, Jr., POYNER & SPRUILL, LLP,
Raleigh, North Carolina, for Appellant.     Anne Margaret Hayes,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.    ON BRIEF: George E. B. Holding, United States
Attorney, Banumathi Rangarajan, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Charles     Thomas    Strickland        appeals       his    sentence     of    84

months’ imprisonment, a sentence which is substantially higher

than the top of the Sentencing Guidelines range recommended by

the   pre-sentence      report     (“PSR”)    and     adopted      by   the   district

court.     Strickland contends the district court erred in imposing

his   sentence    because    it    failed     to    articulate      the   basis      upon

which the above-Guidelines sentence was determined.                            For the

reasons set forth below, we vacate Strickland’s sentence and

remand the case to the district court for resentencing.



                                        I.

      Strickland        resigned     from     the      Robeson       County,        North

Carolina,    Sheriff’s      Office    (“the        Sheriff’s      Office”)    in     2003

after being named in a criminal information, along with other

officers     in   the     Sheriff’s     Office,       for      violations      of    the

Racketeering and Influenced Corrupt Organizations Act (“RICO”),

conspiracy to violate RICO, satellite piracy, and conspiracy to

commit money laundering.           As a result of a lengthy investigation

by state and federal authorities, thirty-two employees of the

Sheriff’s Office were eventually convicted of numerous offenses,

including     drug      distribution,        money     laundering,        kidnapping,

arson, assault, robbery, theft of public funds, discharge of



                                         2
firearms,         satellite        piracy,           making         false       statements           and

falsifying reports, and RICO violations.

      Pursuant         to    a    written       plea          agreement,        Strickland       pled

guilty to one offense, conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h). 1                             As a result of the plea

agreement,        the       Government         dismissed            the     remaining        charges

against Strickland.

      The    PSR       prepared         by     the       probation        officer      calculated

Strickland’s recommended Guidelines sentence range.                                    It awarded

him no criminal history points, establishing a criminal history

category     of    I.        The   PSR        set       the    base   offense       level       at    12

(U.S.S.G.        2S1.1(a)(1);          2B1.1(a)(2)),            added     two     levels     because

the   United       States        had    an     ownership            interest      in   the      money

(2S1.1(b)(2)(B)),            added      4     levels          for   being    an    organizer          or

leader      of     a    criminal             activity          involving        five       or    more

participants (3B1.1(a)), and added two levels for abuse of a

position of public or private trust in a manner to facilitate

      1
        The conspiracy consisted of falsifying documents and
reports associated with the Sheriff’s Office participation in
the Federal Equitable Sharing Program.     The Program permitted
the Sheriff’s Office to use a portion of funds seized in drug
cases to make controlled purchases of drugs and pay confidential
informants   to  assist   in  the   enforcement  of   drug  laws.
Strickland and the other conspirators had informants regularly
sign blank receipts recording greater amounts than had actually
been paid to the informants and then they recorded the higher
amounts on the Program’s audit reports.     The conspirators then
used funds designated to the Program for personal use.



                                                    3
the offense (3B1.1(a)), and then subtracted three levels for

acceptance   of    responsibility      (3E1.1(b)).           The    result    was   an

offense level of 17, which, when calculated with Strickland’s

criminal history, resulted in a guideline range for imprisonment

of 24-30 months.      The PSR noted that an upward departure may be

warranted    under    U.S.S.G.    §    5K2.21       (dismissed       and    uncharged

conduct),    based     on   the       acts       outlined     in     the     criminal

information: stealing property during illegal searches, arson,

and   threatening    violence.        It       further    noted    that    Strickland

“engaged in assaultive and other criminal conduct” that had not

been used to establish the Guidelines range.                 (J.A. 151.)

      At the outset of the sentencing hearing, the district court

expressed concern that it was “fairly outrageous, the fact that

you have all of this [other criminal conduct] conduct in the

[PSR] and guideline sentencing comes up with 24 months,” J.A.

85, and that he had “no confidence in this base offense level

being legally correct.”           (J.A. 86.)             He called a recess and

instructed    the     Government       and       the     probation        officer   to

recalculate the Guidelines range.

      When   the     sentencing       hearing       resumed,       the     Government

reiterated its position that the PSR calculation was accurate,

but noted that the court could impose a departure or variance

sentence to respond to its expressed concerns about Strickland’s

uncharged conduct and the offense characteristics.                       The district

                                           4
court replied that the Guidelines range was “modest, to put it

mildly,” and

      all of the factual recitation of what happened [at the
      Sheriff’s Office] over the past 10 or 15 years is
      outrageous.   Beating people who are arrested, burning
      places down, kidnapping people. It goes on and on and
      on.    And what I am trying to do is to bring a
      connection between what was done and the lawlessness
      of   what  was   done  and  the   punishment  that  is
      appropriate.

(J.A.    91.)         After       additional         dialogue       with       the    Government

regarding       the    sentences         that     other       former      Sheriff’s       Office

employees       received      and    a    general       discussion         of    the    district

court’s desire to hold individuals responsible for conduct they

participated in or permitted, the district court concluded it

had     “no     choice      but    to     start”       with    the       PSR’s       recommended

guideline range of 24 to 30 months.                     (J.A. 95-96.)

      The district court then stated, “I am going to consider an

upward        departure     or     variance          depending      on     the       appropriate

consideration.”           (J.A. 96.)            The court and the parties engaged

in a lengthy discussion of the charges in the indictment, and

the   Prosecutor         noted     several       instances       where         post-indictment

investigation         had    revealed          additional      details         regarding    both

Strickland’s       involvement           and    his    lack    of    knowledge         regarding

those events.            The district court then recited the § 3553(a)

factors,       broadly      observing      that       it   believed        a    “departure    is

warranted,” the sentence should “keep other people who are in


                                                 5
this line of work, who are in the public trust, deterred from

letting their power turn to illegality,” and that these crimes

“were committed by law enforcement.”                (J.A. 108-09.)

      Defense counsel argued that even considering these factors,

a within-Guidelines sentence was appropriate, noting that other

former    employees       of   the    Sheriff’s     Office    had    been     sentenced

within    their     respective        Guidelines      ranges    even        when    they

participated in rather than simply were aware of other criminal

activities.        After an exchange between defense counsel and the

district court to clarify defense counsel’s position, the court

continued       Strickland’s          sentencing      until     the         next    day.

      Shortly      after       the    sentencing     hearing        reconvened,     the

district court summarily stated that the guideline range was 24

to   30   months    and    that      the   “court   is   considering         a   variant

sentence,” and “trying to arrive at the appropriate place to

vary.”    (J.A. 115-16.)          The only additional fact the court noted

was that Strickland was “a witness in some of the trials” where

the convictions were being challenged based on that involvement.

Without     further       explanation,       the    district        court    sentenced

Strickland to a term of 84 months’ imprisonment.                     (J.A. 116.)

      Strickland noted a timely appeal, and we have jurisdiction

pursuant to 28 U.S.C. § 1291.




                                            6
                                               II.

       Strickland           contends        his        sentence           is      procedurally

unreasonable because the district court failed to articulate the

factual basis for a sentence that is fifty-four months above the

high end of his recommended Guidelines range.                                   He notes that

although       the    district     court       mentioned       some      of    the    §    3553(a)

factors, it did not “explain how or why those factors applied in

this case, and never made any specific findings about what it

found    Strickland         had    done     to       support       an    upward       variance.”

(Appellant’s          Br.   19.)         For    these        reasons,      he    asserts       the

sentence        should      be     vacated           and     his    case        remanded       for

resentencing.           He also requests that upon remand, the case be

assigned to a different district court judge.

       We review any sentence, “whether inside, just outside, or

significantly          outside      the    Guidelines          range,”         for    abuse     of

discretion.          Gall v. United States, 552 U.S. 38, 41 (2007).                            The

Supreme Court delineated our sentencing review process in Gall:

first,     we        “ensure      that    the        district       court       committed       no

significant procedural error.”                   Id. at 51.             If, and only if, we

find     the     sentence         procedurally             reasonable,         then       we   will

“consider the substantive reasonableness of the sentence imposed

. . . .”        Id.      Procedural errors include “failing to calculate

(or improperly calculating) the Guidelines range, treating the

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

                                                 7
factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence—including

an explanation for any deviation from the Guidelines range.”

Id.

      When sentencing a defendant, the district court “must make

an individualized assessment based on the facts presented.”                      Id.

at 50.     As we explained in United States v. Carter, 564 F.3d 325

(4th Cir. 2009), this means:

      the district court must “state in open court” the
      particular reasons supporting its given sentence.    18
      U.S.C. § 3553(c) (2006).        In doing so, “[t]he
      sentencing judge should set forth enough to satisfy
      the appellate court that he has considered the
      parties’ arguments and has a reasoned basis for
      exercising his own legal decisionmaking authority.”
      Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456,
      2468 (2007).   This not only “allow[s] for meaningful
      appellate   review”  but   it  also   “promote[s]   the
      perception of fair sentencing.”   Gall, 128 S. Ct. at
      597.    “Where the defendant or prosecutor presents
      nonfrivolous   reasons   for  imposing    a   different
      sentence” than that set forth in the advisory
      Guidelines, a district judge should address the
      party’s arguments and “explain why he has rejected
      those arguments.” Rita, 127 S. Ct. at 2468.

564 F.3d at 328.         In Carter, we concluded the district court

judge      failed   to     “justify         Carter’s     sentence        with     an

individualized rationale.”         Id. at 328-29.             While the district

court    “offered   a    variety   of   statements”       about    the    parties’

arguments and told the parties that it was “looking at the four

purposes    in   Section    3553(a)(2),”       and     even    summarized       those

purposes, it failed to “explain how those purposes applied to

                                        8
Carter.”        Id. at 329.      Indeed, we observed that the “district

court’s     asserted     ‘reasons’        could       apply       to     any   sentence,

regardless of the offense, the defendant’s personal background,

or the defendant’s criminal history.”                 Id.

      The district court’s explanation of Strickland’s sentence

is similarly deficient.              Examining the entirety of the three

separate    sentencing       sessions,     the        district     court       failed    to

articulate the factual basis for an above-Guidelines sentence.

As    detailed     above,      although        the    district         court     and    the

Government dialogued regarding the dismissed charges and other

offenses that occurred in the Sheriff’s Office while Strickland

was   employed     there,      the   district        court    failed      to    make    any

factual findings about what offenses Strickland participated in

or knew about and how that would apply to Strickland’s sentence.

This is especially troublesome because the Government informed

the district court during the sentencing hearing that ongoing

investigation revealed Strickland had no knowledge of and had

not   participated      in     certain    offenses       that      had    been    charged

against him in the original criminal information and which were

listed     in    the   PSR’s    statement        of    dismissed         and    uncharged

conduct.        Therefore,     it    is   not    clear       to   us    what    uncharged

conduct the district court relied upon in its determination that

an above-Guidelines sentence was appropriate.                          When determining

Strickland’s sentence, the district court offered little more

                                           9
than a cursory observation that Strickland was a supervisor in a

Sheriff’s         Office         riddled        with        corrupt      employees.            Such

generalized        statements            are    not    sufficient,       as    they    lack     the

individualized assessment required to establish the particular

sentence imposed is appropriate.

     Furthermore, the court did not explain how any specific

factors corresponded to the sentencing goals of § 3553(a), so as

to articulate a basis for arriving at the particular sentence it

imposed.         It is true that under the sentencing structure set

forth   in       Gall,      a    district       court       need   not      “robotically       tick

through      §    3553(a)’s          every       subsection.”            United       States     v.

Johnson,     445      F.3d        339,    345    (4th       Cir.   2006).          However,     the

district         court’s         discretion           in    sentencing        must    still      be

exercised        in    a        manner    that        permits      a   reviewing       court     to

understand the legal and factual basis for its decision.                                        See

Carter, 564 F.3d at 330 (“This individualized assessment need

not be elaborate or lengthy, but it must provide a rationale

tailored to the particular case at hand and adequate to permit

‘meaningful appellate review.’”).                          Here, we cannot discern from

the district court’s limited allocution what the factual basis

for its decision was or what specific considerations the court

found relevant to its determination of an appropriate sentence.

Accordingly,          the       record     does       not    allow     us     to   perform      any

meaningful appellate review of Strickland’s sentence.

                                                  10
       When an above-Guidelines sentence is imposed, the district

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

the    justification        is     significantly    compelling      to    support       the

degree of the variance.”                Gall, 552 U.S. at 50.            In Gall, the

Supreme Court observed that it was “uncontroversial that a major

departure         should      be     supported      by        a   more        significant

justification than a minor one.”                   Id.       “But a district court

need not justify a sentence outside the Guidelines range with a

finding     of     ‘extraordinary’       circumstances.”          United       States    v.

Evans, 526 F.3d 155, 161 (4th Cir. 2008) (citing Gall, 552 U.S.

at    47,   59).      Given      that   Strickland’s         sentence    is    54   months

higher than the top of the Guidelines range, Gall required the

district court to provide a justification consistent with that

degree of deviation from the Guidelines.                      See Gall, 552 U.S. at

47, 49.      The district court’s explanation thus should not only

be sufficient to show that a deviation is warranted, but also to

support     the    degree     of    deviation    made.        Because    the    district

court’s explanation fell substantially short of this duty, it

committed a procedural error in sentencing Strickland, and the

case must be remanded for resentencing. 2                3




       2
       Strickland also contends the district court committed
procedural error sentencing him to a variance sentence without
first considering a departure sentence.      However, Strickland
concedes the Guidelines calculation is correct and this is not a
case where the sentencing court undertook to depart under the
(Continued)
                                           11
Guidelines and then erred in applying a particular Guidelines
provision.   The sentencing hearing transcript reflects that the
district court interchangeably referred to sentencing Strickland
to an above-Guidelines departure or variance sentence, without
distinguishing between the two.
     While it is true that a sentencing court errs if it fails
to correctly calculate the applicable Guidelines range, Gall,
552 U.S. at 49, the Guidelines are merely the beginning of the
court’s determination of a proper sentence. See Evans, 526 F.3d
at 160. Thus, we have held that a district court’s sentence was
procedurally reasonable even where the Guidelines would not have
permitted the upward departure relied upon by the district
court, because the district court also adequately explained its
sentencing decision in light of the § 3553(a) considerations.
Id. at 164. As we explained in Evans:

    [A]lthough   adherence  to   the  advisory   Guidelines
    departure provisions provides one way for a district
    court to fashion a reasonable sentence outside the
    Guidelines range, it is not the only way.       Rather,
    after calculating the correct Guidelines range, if the
    district court determines that a sentence outside that
    range is appropriate, it may base its sentence on the
    Guidelines departure provisions or on other factors so
    long as it provides adequate justification for the
    deviation.
         When reviewing the sentence selected by the
    district court, regardless of whether the court
    deviates from the advisory Guidelines range because of
    a Guidelines-sanctioned departure, or because of one
    or more § 3553(a) factors, or because of some other
    reason – that is, no matter what provides the basis
    for a deviation from the Guidelines range – we review
    the resulting sentence only for reasonableness.

Id. (citations omitted).
     Accordingly, had the district court’s articulation been
sufficient under either the Guidelines departure provisions or
the § 3553(a) factors, the fact that the district court provided
the latter rather than the former does not, in itself,
constitute procedural error.    Rather, it is the fact that the
district court did not adequately explain its decision using
either of these criteria that is the basis for our conclusion
that procedural error occurred.


                               12
                                        III.

      Strickland     requests      that        the    case        be    assigned      to    a

different    district      court   judge       on     remand.          This   Court        has

previously    examined     such    requests          using    the      three-part      test

delineated    by   the    Second   Circuit       Court       of     Appeals   in    United

States v. Robin, 553 F.2d 8 (2d Cir. 1977) (per curiam):

      (1) whether the original judge would reasonably be
      expected upon remand to have substantial difficulty in
      putting out of his or her mind previously expressed
      views or findings determined to be erroneous or based
      on evidence that must be rejected, (2) whether
      reassignment is advisable to preserve the appearance
      of justice, and (3) whether reassignment would entail
      waste and duplication out of proportion to any gain in
      preserving the appearance of fairness.

United States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1991)

(quoting    Robin,   553    F.2d   at     10).        We     have      considered     these

factors and reviewed the record, and conclude that Strickland

has   satisfied    this    burden.        Accordingly,            we    direct   that       on

remand,     the    case    be   assigned         to    a     different        judge        for

sentencing.




      3
        Because   we   agree that  Strickland’s  sentence  was
procedurally unreasonable, we need not address his additional
argument that the sentence is also substantively unreasonable.
See Gall, 552 U.S. at 50.



                                          13
                                   IV.

     For   the   aforementioned    reasons,     we     vacate   Strickland’s

sentence and remand for resentencing in accordance with this

opinion.    We   also   direct    that   this   case    be   assigned   to   a

different judge on remand.

                                                       VACATED AND REMANDED




                                    14
