Upward sentence departure of 143 months found unreasonable

A defendant who pleaded guilty to arson and was convicted of making a false statement to influence a bank loan is entitled to resentencing because the district court failed to identify an aggravating circumstance not accounted for by the sentencing guidelines when imposing a 240-month sentence, which represented a 143-month upward departure from the guidelines.

Background

William Shawn Elliot appeals the 240-month sentence imposed following his conviction by a jury of making a false statement to influence a bank loan and his subsequent guilty plea to arson. On appeal, Elliot argues that his sentence, which represents a 143-month upward departure from the applicable guidelines range, is procedurally and substantively unreasonable.

Analysis

We conclude that the district court failed to identify an aggravating circumstance not adequately accounted for by Elliot’s guidelines range in departing upwardly under U.S.S.G. § 5K2.6.

In justifying the departure, the district court relied on the government’s motion and its subsequent argument during the sentencing proceeding. The government, in turn, argued that departing upward was necessary to account for the inherent danger that Molotov cocktails pose to life and property. But we find that U.S.S.G. § 2K1.4, the provision under which Elliot’s base offense level with respect to his conviction for arson

was calculated, adequately accounts for the inherent danger of Molotov cocktails. As a result, their inherent dangerousness is not an aggravating circumstance warranting upward departure under § 5K2.6.

The government also fails to identify any other aggravating circumstance on appeal. The government first posits that an upward departure was warranted under U.S.S.G. § 5K2.6 because Elliot damaged multiple buildings, but this circumstance reflects the fact that Elliot was charged with multiple counts of arson, which were taken in account by the district court’s upward departure under U.S.S.G. § 5K2.21 for dismissed and uncharged conduct. The extent of Elliot’s damage was also taken into account by the district court’s upward departure under U.S.S.G. § 5.2K5 for aggravated property damage.

The government next posits that an upward departure was warranted under U.S.S.G. § 5K2.6 because Elliot’s use of Molotov cocktails endangered an innocent tenant, but this circumstance, too, was accounted for by the district court’s base offense level enhancement under U.S.S.G. § 2K1.4(a)(1)(A) for Elliot’s knowing creation of a substantial risk of death or serious bodily injury to another.

Finally, the government asserts that an upward departure was warranted under U.S.S.G. § 5K2.6 because of the number of Molotov cocktails that Elliot used, but fails to clarify how many he used beyond “multiple.” But again, because Elliot was charged with multiple counts of arson, his use of multiple cocktails does not constitute an aggravating circumstance warranting further upward departure under U.S.S.G. §5K2.6.

We next conclude that the district court’s upward departure under U.S.S.G. § 5K2.6 was not harmless because the record does not indicate that the court would have imposed the same sentence without it. Because the district court’s imposition of a 240-month sentence relied in part on its departure under U.S.S.G. § 5K2.6, we cannot conclude that the error had no impact on the district court’s decision.

We also have concerns that the district court’s upward departure under U.S.S.G. § 5K2.7 was not premised on an aggravating circumstance because the apparent basis for this departure—Elliot’s perjury on behalf of himself and his brother—was accounted for with  respect  to  each  conviction  by the  district  court’s  two-level  enhancements under U.S.S.G. § 3C1.1 for obstruction of justice.

Because Elliot has not challenged this departure, however, we express no conclusion about its propriety. We simply note that, on remand, any departure under U.S.S.G. § 5K2.7 must also be based on an “aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that described.”

On remand, the district court is free to identify an aggravating circumstance not adequately accounted for by Elliot’s guidelines range, or to vary under the 18 U.S.C. § 3553(a) factors as it finds appropriate, about which we express no opinion.

Vacated and remanded.

United States v. Elliot, Appeal No. 18-4896, Dec. 27, 2019. 4th Cir. (per curiam), from EDNC at Greenville (Boyle). Katryna Lyn Spearman and Murdoch Walker II for Appellant, Robert J. Higdon Jr., Jennifer P. May-Parker and Banumathi Rangarajan for Appellee. VLW 019-2-307. 9 pp.