PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 05-4224

QUIANA GANAY HAMPTON,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CR-04-575)

Argued: February 2, 2006

Decided: March 23, 2006

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge Motz wrote the

opinion, in which Judge Traxler and Judge Duncan joined. Judge

Motz also wrote a separate concurring opinion. 

COUNSEL

ARGUED: Christopher Todd Hagins, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,

South Carolina, for Appellant. Ronald R. Hall, West Columbia, South

Carolina, for Appellee. ON BRIEF: Jonathan S. Gasser, Acting

United States Attorney, Columbia, South Carolina, for Appellant.
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this appeal, the United States challenges Quiana Ganay Hampton’s sentence for being a felon in possession of a firearm in violation

of 18 U.S.C.A. § 922(g)(1) (West 2000). The sole issue presented to

us is whether the sentence — three years’ probation — is reasonable

under the standard set forth in United States v. Booker, 125 S.Ct. 738,

765 (2005). For the reasons that follow, we conclude that it is not.

Therefore we vacate the sentence and remand the case for resentencing. 

I.

The facts relevant to the underlying offense are undisputed. On

January 10, 2004, the police in Lexington, South Carolina, received

two telephone calls reporting gunfire in a residential neighborhood.

Upon arriving at the reported address, police officers found Hampton,

along with three other individuals, at his home. Hampton appeared

intoxicated. He said he had seen someone shining flashlights into his

home and had fired his gun to protect his property. The officers

obtained permission to search the premises, and, upon doing so, they

found three shell casings outside the home and a rifle in Hampton’s

bedroom. Hampton later admitted that he owned the rifle, and provided officials with the name of the person who had sold it to him.

A criminal background check revealed that Hampton had a prior conviction for a crime with a term of imprisonment exceeding twelve

months, i.e., a felony. Indeed, further investigation revealed that

Hampton had a total of two prior felony convictions, neither of which

had been pardoned, and that several additional charges were pending

against him. 

Hampton ultimately pled guilty to being a felon in possession of a

firearm in violation of 18 U.S.C.A. § 922(g). At the sentencing hearing, both the government and Hampton accepted the presentence

investigation report (PSR), which calculated Hampton’s base offense

level as 23 and his criminal history category as III. This corresponds

to a guidelines sentence of 57 to 71 months’ imprisonment. 

2 UNITED STATES v. HAMPTON
Hampton’s counsel, however, urged the court not to incarcerate

Hampton but instead to impose "some kind of supervised release."

Defense counsel explained that Hampton did not know that he could

not own a rifle (he believed the law only precluded felons from owning handguns), that he cooperated with the police, that he did not use

the gun in any crime, that he did not steal the gun but rather bought

it lawfully, that he had no criminal or malicious intent in possessing

or discharging the firearm, that he had straightened out his life by

joining a church and obtaining full-time employment, and that he was

"a single parent of two minor children, wh[o] he is raising and supporting with the help and assistance of his mother." For these reasons,

Hampton’s counsel argued that "there would be no purpose served,

either for . . . the government or Mr. Hampton to incarcerate him for

any period of time." 

The government opposed the defense’s request, arguing that in its

view a "reasonable sentence" would be one within the advisory guideline range. The prosecutor explained that this "position [wa]s based

on numerous factors," including Hampton’s intoxication at the time

of the incident, and the fact that he fired several gun shots at night "in

a residential neighborhood," thus risking harm to others. The government contended that, given the seriousness of the offense and the

necessity for deterrence, a sentence within the guideline range would

be reasonable. 

After listening to arguments of counsel and questioning Hampton

about the details of the offense and his personal characteristics, the

district court imposed its sentence. At the outset, the court properly

recognized that in Booker, the Supreme Court directed a sentencing

judge to consider the guideline range, as well as the other factors enumerated in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). The

court then determined that because Hampton "work[ed] regularly and

. . . provide[d] for his children," because the offense involved no

injury, and because a term of imprisonment would likely force Hampton’s children, for whom Hampton was the "sole provider," into foster

care, "imprisonment in accordance with the sentencing table in

response to the guidelines would not be proper in this case." The court

concluded instead that a sentence of three years’ probation — with no

imprisonment — would "adequately deter others from violating the

law in this respect" and would "protect the public from further crimes

UNITED STATES v. HAMPTON 3
by this defendant." The government objected to the sentence as being

unreasonable, and noted a timely appeal. 

II.

In Booker, 125 S.Ct. at 757, the Supreme Court invalidated mandatory application of the United States Sentencing Guidelines, thereby

making the guidelines "effectively advisory." Booker instructs sentencing courts to make individual sentencing decisions grounded in

all of the factors set forth in 18 U.S.C.A. § 3553(a). Id. One of these

factors is "the kinds of sentence and the sentencing range established"

by the now-advisory guidelines. 18 U.S.C.A. § 3553(a)(4). Sentencing courts must therefore still "take account of" the now-advisory

guidelines in post-Booker sentencing. 125 S.Ct. at 764. Indeed, we

have directed that when sentencing a defendant, a district court, after

making appropriate findings of fact, must initially calculate the proper

guideline range. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005). A court must consider this range, along with the other factors

set forth in § 3553(a), in determining an appropriate sentence in each

case. Booker, 125 S.Ct. at 757; Hughes, 401 F.3d at 546-47. 

Thus, after determining the advisory guideline range, a sentencing

court must consider "the nature and circumstances of the offense and

the history and characteristics of the defendant" and the need "to

reflect the seriousness of the offense," provide "just punishment," "afford adequate deterrence," "protect the public," and "avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct." 18 U.S.C.A.

§ 3553(a). See also United States v. Green, 436 F.3d 449, 455-56 (4th

Cir. 2006). Only sentences that "reflect" these § 3553(a) factors —

whether falling within or outside the guideline range — comply with

Congress’s statutory mandate. See Booker, 125 S.Ct. at 765. 

In determining if a sentence "serves the factors set forth in

§ 3553(a)," a court should determine, after calculating the initial

guideline range, whether a traditional upward or downward departure

under the guidelines would be appropriate; if so, the court may depart

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

2006).1 If after this consideration the sentence rendered does not serve

1A district court may grant a "traditional" downward or upward departure if it finds an aggravating or mitigating factor of a kind or a degree

4 UNITED STATES v. HAMPTON
the § 3553(a) factors, a court may impose a "variance sentence," i.e.,

a sentence not within the advisory guideline range. The court may

impose this variance sentence provided that the sentence falls within

the statutory limits for the underlying offense and is "reasonable." Id.;

Green, 436 F.3d at 456. But the sentencing court must adequately

explain the reasons for the variance. Hughes, 401 F.3d at 546. 

The reasonableness of any given sentence will largely depend upon

the specific facts of each case and the district court’s consideration

and application of the § 3553(a) factors to those facts. Moreland, 437

F.3d at 433. In considering whether a sentence is unreasonable, we

will review the district court’s legal conclusions de novo and its factual findings for clear error. Id.

We recently explained that "[a] sentence that falls within the properly calculated advisory guideline range is entitled to a rebuttable presumption of reasonableness." Id. This is not to say that a sentence

falling outside of the guideline range is automatically unreasonable;

rather, the reasonableness of a variance sentence will depend upon

whether a variance was proper in light of the facts of the particular

case at hand, as well as whether those facts support the degree of the

variance granted. Id. at 433-34. 

If the district court’s justifications for the variance sentence "are

tied to § 3553(a) and are plausible," we will uphold the sentence as

reasonable. Id. at 434. "However, when the variance is a substantial

one, . . . we must more carefully scrutinize the reasoning offered by

the district court in support of the sentence. The farther the court

diverges from the advisory guideline range, the more compelling the

reasons for the divergence must be." Id. See also United States v.

that the Sentencing Commission did not consider applicable to the

"heartland" of cases. Koon v. United States, 518 U.S. 81, 92-94 (1996).

Such departures will generally be based on encouraged factors — those

the Commission recognized the guidelines did not fully take into account

— but departures may also be based on discouraged factors — those the

Commission considered and deemed irrelevant to the determination of

most sentences. Id. at 94-95. Departures based on discouraged factors,

however, are appropriate only in "exceptional" cases. Id. at 95. 

UNITED STATES v. HAMPTON 5
Dean, 414 F.3d 725, 729 (7th Cir. 2005); United States v. Dalton, 404

F.3d 1029, 1033 (8th Cir. 2005). 

With these principles in mind, we turn to the question of whether

the sentence that Hampton received — three years’ probation for

being a felon in possession of a firearm — was reasonable. 

III.

In calculating Hampton’s sentence shortly after the Supreme Court

decided Booker, the district court properly recognized that the now

advisory sentencing guidelines still play an important role in sentencing. Thus, relying on the unchallenged PSR, which calculated a base

offense level of 23 and placed Hampton in a criminal history category

of III, the court initially determined the advisory guideline range to

be 57 to 71 months’ imprisonment. The court then mentioned some

of the other § 3553(a) factors in determining that a variance sentence

would best serve the purposes set forth in that statute.2

The court reasoned that because the offense caused no injury and

because Hampton was employed and was caring for his two youngest

children, a sentence of no incarceration, but only probation, would

adequately deter Hampton and others from violating the law and

2We note that the sentencing hearing in this case took place on February 11, 2005, just one month after the Supreme Court issued its opinion

in Booker and at a time when post-Booker sentencing law remained

largely undeveloped. In imposing the non-guideline sentence at issue

here, the district court utilized the language of "departure" rather than

what has more recently become known as a "variance." The permissible

factors justifying traditional departures differ from — and are more limited than — the factors a court may look to in order to justify a postBooker variance. See, e.g., United States v. Brady, 417 F.3d 326, 333 (2d

Cir. 2005) (explaining that a lower sentence may be appropriate "even

when a downward departure is unavailable"). Our review of the record

indicates that, after calculating the proper advisory guideline range, the

district court did not make a traditional downward departure — Hampton

did not contend that any grounds existed for such a departure. Rather,

although the district court said it was "departing" fifteen levels, we

believe it actually imposed a variance sentence, relying on some of the

§ 3553(a) factors. We therefore review the sentence accordingly. 

6 UNITED STATES v. HAMPTON
would adequately protect the public from Hampton. A review of the

sentencing hearing indicates that the district court’s primary concern

was the fate of Hampton’s two small children should he be sent to

prison. As a result, the court reduced Hampton’s sentence well below

the guideline range (57 to 71 months’ imprisonment) and avoided

imposing any term of incarceration. 

In order to withstand reasonableness scrutiny, such a dramatic variance from the advisory guideline range must be supported by compelling justifications related to § 3553(a) factors, see Moreland, 437 F.3d

at 433-34, and "excessive weight" may not be given to any single factor. See Green, 436 F.3d at 457. The sentence at issue here fails in

both of these respects. First, although the district court briefly mentioned two § 3553(a) factors — deterrence and protection of the public — in setting forth the variance sentence, the court never explained

how the sentence imposed — probation — served these interests. Furthermore, the court did not explain how this variance sentence better

served the competing interests of § 3553(a) than the guidelines sentence would. Nor has Hampton offered any argument in support of

such conclusions. 

In truth, the district court actually relied on (rather than merely

mentioned) only one aspect of one § 3553(a) factor — Hampton’s status as sole custodial parent of his two small children; but even though

Hampton apparently supported and cared for two of his children (with

the assistance of his mother), he was behind in child support for his

two other children. Family ties and responsibilities are a discouraged

factor under the guidelines. U.S.S.G. § 5H1.6. Under the facts of this

case, Hampton would not have been entitled to a downward departure

pursuant to a computation of an appropriate sentence under the guidelines, and we do not find in this record, considering all the circumstances, any other basis for a reduction of near this magnitude.

Without deciding if a variance could be based on the existence of a

factor discouraged as a basis for departure under the guidelines, we

believe Hampton’s sentence must be vacated and the case remanded

for resentencing consistent with this opinion. 

IV.

For the foregoing reasons, the judgment of the district court is

UNITED STATES v. HAMPTON 7
VACATED AND REMANDED.

DIANA GRIBBON MOTZ, Circuit Judge, concurring: 

I write separately to emphasize that a variance of this magnitude

is not per se unreasonable, and that consideration of a defendant’s

personal characteristics and history is proper under § 3553(a). When

evaluating the reasonableness of a variance sentence, we must determine in each case whether the particular reasons offered by the district court warrant the specific reduction imposed. Here, the district

court gave excessive weight to a single § 3553(a)(1) factor and failed

to consider other relevant personal characteristics, such as Hampton’s

prior convictions and pending charges, his being behind in child support payments, and his inconsistent employment history, as well as

other relevant § 3553(a) factors. Given the sparsity of applicable

§ 3553(a) factors supporting a deviation from the guideline range in

this case, the court’s purported reasons for reducing Hampton’s sentence fall far short of justifying a variance of such a degree. 

However, there will undoubtedly be cases in which a sizable variance sentence better serves the § 3553(a) factors. See, e.g., United

States v. Williams, 435 F.3d 1350, 1354-55 (11th Cir. 2006) (per

curiam) (affirming a sentence that was more than fifty percent below

the suggested guideline range); United States v. Hadash, 408 F.3d

1080, 1084 (8th Cir. 2005) (affirming the district court’s six-level

variance as "reasonable based on the § 3553(a) factors"). Moreover,

automatic application of the guidelines without proper consideration

of the other § 3553(a) factors would contravene Booker’s mandate.

See 125 S.Ct. at 757. Thus, in fashioning a reasonable sentence, district courts must properly calculate the advisory guideline range and

then must determine what sentence — one within the advisory range

or outside of it — most effectively meets the factors set forth

§ 3553(a).

8 UNITED STATES v. HAMPTON