                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4584


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTHONY BERNARD DILLON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:04-cr-00456-WDQ-1)


Argued:   October 30, 2009                 Decided:   December 9, 2009


Before MICHAEL, KING, and AGEE, Circuit Judges.


Vacated and remanded for resentencing by unpublished per curiam
opinion.


ARGUED: Gary Allen Ticknor, Elkridge, Maryland, for Appellant.
Judson T. Mihok, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Anthony Bernard Dillon pled guilty, pursuant to a written

plea    agreement,          to    fraudulent          use     of    an    access      device    in

violation      of      18        U.S.C.     § 1029(a)(5).                 Dillon’s      advisory

Guidelines          range        was     calculated           at     30     to     37    months’

imprisonment, but the district court departed upward sentencing

him to 87 months of incarceration. On appeal, we vacated and

remanded      the    sentence          based   on      several      procedural        errors    at

Dillon’s first sentencing hearing.                          See United States v. Dillon,

251    Fed.   Appx.     171,       173     (4th       Cir.    2007)      (unpublished).         At

resentencing, the district court again deviated upward from the

suggested      Guidelines          range,      this         time    imposing     an     84-month

sentence.       Dillon           now   raises     several          issues    related     to    the

procedural reasonableness in the imposition of his sentence.                                   We

exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291.       For     the        reasons    set       forth    below,       we   again    vacate

Dillon’s      sentence           and     remand        to     the     district       court     for

resentencing.




                                                  2
                                     I.

      The Presentence Investigation Report (“PSR”) in this case

placed Dillon’s base-offense level at 6. 1        After incorporating 2-

level increases for causing a loss exceeding $5,000, having 10

or more victims, stealing from a person, and using sophisticated

means,     as   well   as   a   2-level   reduction     for   acceptance    of

responsibility, the PSR established an adjusted-offense level of

12.   In combination with a criminal history category of VI, the

PSR yielded a suggested Guidelines range of 30 to 37 months’

imprisonment.      The PSR did not list any grounds for an upward

departure from the advisory Guidelines range.

      At    the   first     sentencing    proceeding,     Dillon   and     the

Government requested the district court impose a sentence within

the suggested Guidelines range. 2         The district court declined to

do so because of Dillon’s extensive criminal history:

           You have, by my count, and discounting the drug
      conviction, 23 convictions in seven different states:
      Minnesota, Indiana, Florida, Ohio, Illinois, Texas,
      New York. You’ve used 29 aliases in your career, and
      although it is common, I suppose, these things, in
      theft cases, your case is an extraordinary one, in the
      geographic range of your theft activities, and over

      1
       Dillon pled guilty to credit card fraud in violation of 18
U.S.C. § 1029(a)(5) after authorities located stolen credit and
bank cards, counterfeiting materials, and various stolen goods
and identification documents in his possession.
      2
        Dillon’s plea agreement obligated the Government                   to
recommend a sentence within the advisory Guidelines range.



                                      3
     the period of time, you have convictions at the age of
     18, 19, 21, 22, 24, 25, 26, 29, 30, 33, 36, 38, 39,
     each of these ages you’ve got convictions and some
     years multiple convictions, and I note that this
     offense was done when you were on parole for a robbery
     offense.

Joint Appendix (“J.A.”) at 51.

     Dillon’s “appalling record” prompted the district court to

conclude that an extended term of imprisonment was necessary to

protect   the    public    and    to   give    Dillon   the   chance     “to   make

preparations in some fashion for a non criminal career.”                   Id. at

51-52.    The district court then determined that to accomplish

that goal it would make an upward departure under the Guidelines

from a criminal history category VI, offense level 12.                         The

court did not specifically reference U.S.S.G. § 4A1.3(a), but

stated:     “I    am      going   to     depart    upward     in   the   advisory

[G]uidelines     to    sentence    you    at   a   Criminal    History    VI   and

offense level 22.         I’m going to impose a sentence at the bottom

of those [G]uidelines; that is an 87-month sentence.                     That’s a

seven-year sentence.” 3       Id. at 53.




     3
       There is some confusion as to whether the district court
originally intended to impose a sentence of 84 or 87 months. As
we explained in our first opinion in this case, the district
court’s “orally pronounced sentence was eighty-seven months” and
“the orally pronounced sentence controls.”     Dillon, 251 Fed.
Appx. at 172 n.1; see also United States v. Morse, 344 F.2d 27,
29 n.1 (4th Cir. 1965).



                                         4
       On        appeal,    Dillon    argued       the    district   court     erred   in

departing upward without providing prior notice, or following

the “incremental approach” mandated by both § 4A1.3(a)(4)(B) and

our precedent.             See Dillon, 251 Fed. Appx. at 172-73.                We held

that       the    district    court    “adequately         stated    its    reasons    for

departing pursuant to § 4A1.3” and that “the departure was based

on proper factors.”            Id. at 173.

       However, we vacated Dillon’s sentence because the district

court       failed     to    provide     “either         the    incremental     analysis

required by § 4A1.3 or the extensive justification required by

dramatic departures.”               Id. (quotations omitted).              On remand, we

stated the district court “should explain why category VI is

inadequate, and ‘move incrementally down the sentencing table to

the next higher offense level until it [found] a guideline range

appropriate           to     the      case.’”             Id.    (quoting       U.S.S.G.

§ 4A1.3(a)(4)(B)).             We    provided      this    stipulation      because    the

district court “said nothing about how it determined the extent

of the departure.” 4          Id.




       4
       We also held that the district court erred in failing to
give Dillon notice of its intent to depart from the suggested
Guidelines range before it imposed sentence.    See Dillon, 251
Fed. Appx. at 172-73; see also Fed. R. Crim. P. 32(h).   Dillon
does not raise any notice issue in the instant appeal and we
consider none.   See also Irizarry v. United States, 128 S. Ct.
2198, 2201-02 (2008).



                                               5
      Upon      remand,      Dillon’s      second         sentencing      proceeding

commenced after the Supreme Court issued its decision in Gall v.

United States, 552 U.S. 38 (2007).                The district court initially

opined that, after Gall, “some of the considerations” we relied

upon in remanding Dillon’s case for resentencing were “perhaps

no longer operative.”          J.A. at 64.         Then, the court reaffirmed

its sentence was a departure under the Guidelines and noted the

Fourth    Circuit    had     confirmed     that     “I    adequately      stated     the

reasons   for    departing     and   the       departure    was   based    on    proper

factors; however, there is some disagreement on the part of the

Fourth    Circuit     with     the   degree       or     the   magnitude        of   the

departure.”      Id. at 65.       Despite the direction of our mandate,

the   district      court    never   mentioned           U.S.S.G.   § 4A1.3(a)        or

described an upward departure analysis under that section.                           The

district court’ sentence and rationale was the following:

      I think, in reanalyzing the case under Gall, I come
      out the same place where I was when I imposed the
      original sentence; that is, Mr. Dillon, I commit you
      to serve a term of imprisonment of 84 months with the
      remaining conditions as imposed, and I do that in
      light   of  the    numerous   convictions  in numerous
      jurisdictions   which   I   detailed  at  the original
      sentencing, which was noted by the Court of Appeals in
      its decision.      I incorporate from that original
      sentencing my reasoning.

Id.




                                           6
                                           II.

       Under   Gall,     we   review   all        sentences     for     reasonableness

under a “deferential abuse-of-discretion standard,” regardless

of   whether    the     sentence   selected          by   the   district      court    is

“inside, just outside, or significantly outside” the suggested

Guidelines range.        Gall, 552 U.S. at 41.              Appellate review under

this    standard      encompasses      a        procedural      and     a   substantive

component.      See United States v. Heath, 559 F.3d 263, 266 (4th

Cir. 2009).

       To ensure a sentence is procedurally reasonable, we inquire

whether the district court followed the correct path in reaching

its selected sentence.          Significant deviations from this path,

“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 sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence — including an explanation for any deviation

from the Guidelines range,” require resentencing.                            Gall, 552

U.S. at 51.        Compliance with these procedural requirements is

important because they ensure the district court gives “serious

consideration      to     the   extent          of    any    departure       from     the

Guidelines,” which are “the product of careful study based on

extensive      empirical      evidence          derived     from      the   review     of

thousands of individual sentencing decisions.”                        Id. at 46.     Only

                                            7
if   a       sentence   is    procedurally        reasonable   do     we     proceed   to

consider the substantive reasonableness of the district court’s

chosen sentence.          See United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009).



                                          III.

         In this appeal, Dillon argues that his 84-month sentence is

procedurally unreasonable because the district court effected a

10-level Guidelines departure without employing the “incremental

approach” established by § 4A1.3(a)(4)(B) and did not follow the

mandate of this Court as we instructed on remand.                          Thus, Dillon

maintains        his    sentence     should       be   vacated       as     procedurally

unreasonable        and      that   he   is   entitled    to     a    new    sentencing

hearing. 5




         5
       Dillon makes the alternative argument on appeal that even
if the district court varied from the Guidelines at his second
sentencing proceeding under the factors laid out in 18
U.S.C. § 3553(a), the district court did not sufficiently
explain how it reached its chosen sentence.    Because we vacate
the sentence on other grounds, we do not address this
contention.    Dillon also argues that at least one of the
district court’s reasons for departing upward from the suggested
Guidelines range is not supported by the record. Again, because
we remand for resentencing on other grounds, we do not address
this argument on appeal. See United States v. Passaro, 577 F.3d
207, 223 (4th Cir. 2009).    Nothing in our decision should be
construed to prevent Dillon from presenting these arguments to
the district court on remand. See id.



                                              8
                                         A.

       The “same facts and analyses” may support “a Guidelines

departure and a variance,” but these concepts remain “distinct”

even after the Supreme Court’s decision in Gall.                  United States

v.    Grams,   566   F.3d   683,   687    (6th   Cir.    2009).    Indeed,   the

Supreme Court explained in Irizarry v. United States, 128 S. Ct.

2198 (2008) that a “[d]eparture” is a “term of art” that refers

to a non-Guidelines sentence “imposed under the framework set

out in the Guidelines.”          128 S. Ct. at 2202.        A “variance[],” in

contrast, denotes a non-Guidelines sentence reached under the

factors laid out in “18 U.S.C. § 3553(a).”               Id. at 2203.

       Whether the district court chooses to depart or vary from

the suggested Guidelines range has “real consequences for an

appellate court’s review.”             United States v. Brown, 578 F.3d

221, 226 (3d Cir. 2009).            The Supreme Court in Irizarry, for

example, held that Federal Rule of Criminal Procedure 32(h)’s

notice requirement applies to departures, but not to variances. 6

See    Irizarry,     128    S.   Ct.     at   2201-02.      Furthermore,     the

“permissible     factors    justifying        traditional   departures   differ


       6
       Rule 32(h) requires the district court to give “the
parties reasonable notice” if it intends to depart on a “ground
not identified for departure either in the presentence report or
in a party’s prehearing submission.”    Fed. R. Crim. P. 32(h).
The notice rendered under this section “must specify any ground
on which the court is contemplating a departure.” Id.



                                         9
from — and are more limited than — the factors a court may look

to in order to justify a post-Booker variance.”                       United States

v. Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006); see also

United States v. Chase, 560 F.3d 828, 830 (8th Cir. 20009);

United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir. 2008).

Because departures are thus “subject to different requirements

than variances,” United States v. Floyd, 499 F.3d 308, 311 (3d

Cir. 2007), it is important for district courts to “‘articulate

whether a sentence is a departure or a variance from an advisory

Guidelines        range.’”     Brown,    578   F.3d    at    226   (quoting    United

States v. Vampire Nation, 451 F.3d 189, 198 (3d Cir. 2006)). 7

       The district court’s intention to effect a departure at

Dillon’s initial sentencing proceeding is not in doubt, as the

court explained that it would “depart upward in the advisory

[G]uidelines         to   sentence      [Dillon]      at     a   Criminal     History

[Category of] VI and offense level [of] 22” — not the offense

level of 12 contained in the PSR.               J.A. at 53.         On remand, the

district court gave no indication that it intended to sentence

Dillon other than by the same upward departure.                     The court noted

that       “I   adequately   stated   the   reasons        for   departing    and   the


       7
       See Grams, 566 F.3d at 688 (remanding for resentencing
based, in part, on the district court’s failure to explain
whether it departed or varied from the defendant’s suggested
Guidelines range).



                                          10
departure was based on proper factors . . . and I incorporate

from    that       original         sentencing          my     reasoning.”             Id.    at     65

(emphasis added).               The district court relied almost exclusively

on    its    prior      departure          analysis      in       sentencing      Dillon       to    84

months’      imprisonment.                 Thus,    it       is    clear    Dillon’s         current

sentence is based on a Guidelines departure.



                                                   B.

       Having           confirmed          that         Dillon’s       84-month              sentence

constitutes         a     departure          by    the       district       court       from        the

Guidelines range, we now turn to Dillon’s contention that the

district      court       erred       in    failing       to      follow    the     “incremental

approach” under U.S.S.G. § 4A1.3(a)(4)(B) as our precedent for

upward departures from a criminal history category VI indicates

and    as    our     mandate         directed.           The       “extent”    of       an    upward

departure under § 4A1.3 is generally determined by reference to

the criminal history category that “most closely resembles that

of     the   defendant’s.”                  U.S.S.G.         § 4A1.3(a)(4)(A).                But     a

different procedure is required where, as here, the defendant

already      possesses          a    criminal       history        category       of    VI     —    the

maximum criminal history category established by the Guidelines.

In that case, the Guidelines instruct the district court to move

“incrementally           down       the    sentencing         table    to   the     next       higher



                                                   11
offense level in Criminal History Category VI until it finds a

guideline range appropriate to the case.”                      Id. § 4A1.3(a)(4)(B).

      The district court, however, appeared to believe that the

Supreme Court’s decision in Gall obviated the need for it to

follow the incremental procedure required by § 4A1.3(a)(4)(B),

our   precedent,        and   the    mandate      when    sentencing      based    on   an

upward departure.           This conclusion was in error.

        In Gall, the Supreme Court addressed a variance imposed

under     the     factors     laid    out    in    § 3553(a),      not     a   departure

conducted pursuant to the Guidelines. 8                        See United States v.

Autery, 555 F.3d 864, 872 n.7 (9th Cir. 2009).                            Our precedent

relating        to    the   proper    procedures         for    executing      Guidelines

departures when that is the procedure utilized by the district

court     remains       unaltered     by    the   Supreme       Court’s     decision    in

Booker    and        subsequent     sentencing     cases.         See,    e.g.,    United

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

States v. Rusher, 966 F.2d 868, 885 (4th Cir. 1992).                              As the

Tenth Circuit explained, “[w]hile Booker made application of the

      8
       See Gall, 552 U.S. at 56 (“The Court of Appeals gave
virtually no deference to the District Court's decision that the
§ 3553(a) factors justified a significant variance in this
case.”); id. at 59-60 (“[I]t is not for the Court of Appeals to
decide de novo whether the justification for a variance is
sufficient . . . . On abuse-of-discretion review, the Court of
Appeals should have given due deference to the District Court's
. . . decision that the § 3553(a) factors, on the whole,
justified the sentence.”).



                                             12
sentencing [G]uidelines advisory rather [than] mandatory, it did

not impact pre-existing law concerning the interpretation of any

sentencing guideline or expand the availability of departures

under the sentencing [G]uidelines.”             United States v. Beltran,

571 F.3d 1013, 1019 (10th Cir. 2009).                 Thus, when a district

court proceeds to impose a sentence based on the Guidelines, it

must       correctly    follow   the   Guidelines   to    avoid   an   error    of

procedural unreasonableness.

       The Supreme Court’s sentencing cases simply establish that

district       courts     have   the    “discretion       to   vary    from    the

[Guidelines] range if a variance” is appropriate under 18 U.S.C.

§ 3553(a). 9       Id.      We   discussed   the    Supreme     Court’s   recent

development      of    non-Guidelines    methods    for    deviating   from    the

Guidelines range in United States v. Evans, 526 F.3d 155 (4th

Cir. 2008), in which we explained:

             Gall and Rita . . . firmly establish that
       although   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

       9
       Cf. United States v. Lofink, 564 F.3d 232, 240 n.17 (3d
Cir. 2009) (“The Supreme Court has given wide latitude to
district courts to vary from the Guidelines range under
§ 3553(a) . . . .    But it has not extended that latitude to a
district   court’s   procedure  for  determining  the   advisory
Guidelines range.”).



                                        13
       Guidelines departure provisions or on other factors
       [i.e., the 18 U.S.C. § 3553(a) factors] so long as it
       provides adequate justification for the deviation.

526 F.3d at 164.            Because the district court in this case chose

to make its sentence for Dillon as an upward departure under the

Guidelines, not a variance or other factor as allowed by the

Supreme        Court’s      recent    cases,      the     traditional       rules    for

Guidelines departures continued to apply.

       The district court thus procedurally erred in failing to

conduct       the     “incremental      analysis”       required      for    departures

beyond a criminal history category of VI.                     We do not “require a

sentencing judge to move only one” offense level at a time,

rejecting “each and every intervening level” in turn.                           Dalton,

477 F.3d at 199 (quotations omitted).                     We do, however, require

the district court to adequately explain its decision to deviate

from     the     Guidelines        range    and     the      applicable      Guidelines

requirements like U.S.S.G. § 4A1.3(a)(4).                     See United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).                              In

other words, the district court “must expressly articulate not

only the legal and factual reasons for a departure, but also the

logical       foundation       for    the   degree      of    departure     selected.”

United       States    v.     Robertson,    568   F.3d    1203,      1214   (10th   Cir.

2009).       Furthermore, the district court should tie its rationale

for    the    extent     of    a   particular     departure     to   the    Guidelines’




                                            14
“existing structure.”          See United States v. Cash, 983 F.2d 558,

561 (4th Cir. 1992); see also U.S.S.G. § 4A1.3(a)(4).

      Moreover, the district court was not free to ignore our

mandate.     As noted above, its view that Gall voided the mandate

as to following U.S.S.G. § 4A1.3(a)(4)(B) was incorrect under

the facts of this case.             Accordingly, as our precedent clearly

holds, the district court was required to follow the direction

of our mandate upon remand. 10              See, e.g., Invention Submission

Corp. v. Dudas, 413 F.3d 411, 414-15 (4th Cir. 2005).

      The   district     court      sufficiently     explained    the    legal   and

factual bases for its decision to depart, see Dillon, 251 Fed.

Appx. at 173, as we frequently approve upward deviations from

the    suggested        Guidelines      range    based    on     a      defendant’s

intransigent recidivism.             See, e.g., Heath, 559 F.3d at 268;

Evans,     526   F.3d   at   163-64.       But   a   district    court    does   not

fulfill its “explanatory duty merely by stating the bases for

the   departure;”       it   must   also    disclose   its   “reasons      for   the

sentence actually imposed.”            Robertson, 548 F.3d at 1214-15; see

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

      10
        To the extent our prior decision directed the district
court to provide an “extensive justification required by
dramatic departures,” Dillon, Fed. Appx. at 173,           that
proposition was negated by Gall. See 542 U.S. at 47 (“We reject
. . .   an   appellate   rule   that requires   ‘extraordinary’
circumstances to justify a sentence outside the Guidelines
range.”).



                                           15
2006).     Because the district court chose to base the sentence on

a Guidelines upward departure, it was necessary, as a matter of

procedural reasonableness, that the district court follow the

Guidelines’ existing structure as required by § 4A1.3 and our

precedent.      “It   is    axiomatic    that    a   district   court      commits

reversible procedural error when it fails to explain a departure

or variance.”     United States v. Passaro, 577 F.3d 207, 223 (4th

Cir. 2009).

     We,    therefore,     vacate    Dillon’s    sentence     and    remand    for

resentencing.     See United States v. Perez-Pena, 453 F.3d 236,

241 (4th Cir. 2006).        In resentencing, the district court should

explain why category VI, offense level 12 is inadequate, “moving

incrementally    down      the   sentencing     table   to   the    next    higher

offense level in . . . [c]ategory VI until it finds a guideline

range appropriate to the case.”              U.S.S.G. § 4A1.3(a)(4)(B); see

also Dalton, 477 F.3d at 200 n.3.



                                    VACATED AND REMANDED FOR RESENTENCING




                                        16
