UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4181

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

WALTER ROBERT HAWES, 

 Defendant - Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Patrick Michael Duffy, District 

Judge. (2:05-cr-00267-PMD) 

Argued: October 31, 2008 Decided: January 30, 2009 

Before WILKINSON and GREGORY, Circuit Judges, and Martin K. 

REIDINGER, United States District Judge for the Western District 

of North Carolina, sitting by designation. 

Affirmed by unpublished opinion. Judge Reidinger wrote the 

opinion, in which Judge Wilkinson and Judge Gregory joined. 

ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Charleston, South Carolina, for Appellant. Michael 

Rhett DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, 

South Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd, 

United States Attorney, Columbia, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
REIDINGER, District Judge: 

 After pleading guilty to the charge of identity fraud in 

violation of 18 U.S.C.A. § 1028(a)(7) and (b)(1)(D) (West 2000 & 

Supp. 2008), the Defendant Walter Robert Hawes was sentenced to 

120 months’ imprisonment. Hawes appeals, arguing that his 

sentence is substantively unreasonable. Finding no abuse of 

discretion by the district court, we affirm. 

I. 

 In 1995, Hawes was one of four roommates sharing a house in 

Charleston, South Carolina. After he abruptly moved out, it was 

discovered that Hawes had stolen the Social Security card, birth 

certificate, and personal checks of one of his roommates, Robert 

Burke, and had cashed those checks, receiving approximately 

$2,000.00. It was also discovered that Hawes had stolen 

personal checks from another roommate, Gary Elliot, and had 

cashed those checks, receiving approximately $1,800.00. 

After stealing the personal checks of his roommates, Hawes 

fled to North Carolina, where he obtained a driver’s license in 

Burke’s name using the stolen birth certificate and Social 

Security card. While in North Carolina, Hawes incurred unpaid 

medical bills, credit card debt, telephone bills, and cable 

bills in Burke’s name. Using Burke’s identity, Hawes married a 

woman in North Carolina, fathered a child, and incurred child 

2 
support obligations. Hawes subsequently abandoned this family 

and moved back to South Carolina, where he fathered another 

child, still using Burke’s identity. When Hawes defaulted on 

his child support obligations in North Carolina, there was an 

attempt to garnish Burke’s wages for the child support 

obligations incurred by Hawes using Burke’s identity. 

Hawes used Burke’s identity for more than a decade, and in 

the process, destroyed Burke’s credit record. At the sentencing 

hearing, Burke testified that he could never clean up his credit 

report because once he corrected it, “new things would pop up 

all the time. So it was a never-ending nightmare.” J.A. 45. 

Burke and his wife suffered substantial inconvenience and 

stress related to repairing his damaged credit record. Burke 

testified that collection agencies have been calling him for 

over a decade for unpaid bills that Hawes incurred in his name. 

Burke testified that for several years, these calls occurred on 

a daily basis. Burke stated that collection agencies “aren’t 

kind people” and that they did not believe him when he told them 

that he was a victim of identity theft. J.A. 45-46. As a 

result, he testified, “it was impossible to stop that nightmare 

from happening. It was an incessant, over and over, daily 

matter that happened for a decade.” J.A. 46. 

Burke testified that due to his ruined credit history, he 

had to pay 22 percent interest for an automobile loan, far 

3 
higher than he should have paid given his actual credit history. 

He further testified that he had to pay higher interest for 

credit cards and that he could not be the primary borrower on 

his home mortgage. Burke’s credit history was so damaged that 

he was forced to obtain a new Social Security number from the 

Social Security Administration. 

Using Burke’s identity, Hawes was convicted of at least 

three felonies and was incarcerated in state prison. Burke 

testified that he was once denied a job because of the criminal 

record that Hawes had compiled in his name. Burke further 

testified that he lost a job opportunity at another company 

which paid $20,000 more per year than his position at the time 

because the company’s background check revealed the crimes that 

Hawes had committed using Burke’s identity. Burke testified 

that this criminal record had “a chilling effect on my career 

over the past ten years because I’m afraid to leave jobs.” J.A. 

50. Burke testified that he was forced to travel to Raleigh to 

get fingerprinted, and state authorities had to compare his 

fingerprints to the fingerprints on every arrest record that 

Hawes had compiled in his name. Despite Burke’s efforts, his 

current job at Bank of America was delayed for more than one 

month because of this erroneous criminal record. 

In November 2004, the Secret Service located Hawes in 

Ladson, South Carolina. Hawes initially identified himself to 

4 
the Secret Service as Robert Burke, and he provided Burke’s 

Social Security card and birth certificate as proof of his 

identity. Ultimately, Hawes confessed to stealing Burke’s 

identity. He explained that he had assumed Burke’s identity 

because he previously had testified for the state in an 

attempted murder trial and he was scared. At the conclusion of 

the interview, the agents advised Hawes that he would be 

indicted and that he would receive a summons to appear for 

arraignment. 

Following his indictment in March 2005, Hawes absconded. 

While a fugitive, Hawes continued to use Burke’s identity, 

incurring over $4,000 in unpaid medical bills in Burke’s name. 

Hawes committed additional identity theft by stealing the Social 

Security card and birth certificate of his employer’s son, Eric 

Beltz. Using this stolen information, Hawes obtained a Georgia 

driver’s license and incurred more than $5,000 in credit card 

debt in Beltz’s name. 

In July 2006, Hawes was arrested by state authorities for 

the theft of Beltz’s identity. At the time of his arrest, Hawes 

was living in Summerville, South Carolina, with his common law 

spouse, Angel Sollars. A search of the residence revealed 

numerous items procured through fraud, including air 

conditioners, clothing, jewelry, tools, and electronic 

appliances. In an interview with the Secret Service following 

5 
his arrest, Hawes stated that he knew he was wanted by law 

enforcement, but he fled because he was afraid of going to jail. 

During this interview, agents described the harm that his 

identity theft had caused Burke. Hawes responded that Burke 

“didn’t have a very good life to begin with.” J.A. 62. 

II. 

 On September 13, 2006, Hawes entered his plea of guilty to 

the indictment. A Presentence Report (PSR) was prepared, and 

based upon a criminal history category of V and an offense level 

of 12, the appropriate advisory Guidelines range was calculated 

to be 27 to 33 months’ imprisonment. In the PSR, the probation 

officer recommended an upward departure from the Guidelines or 

an upward variance under 18 U.S.C.A. § 3553(a) (West 2000 & 

Supp. 2008). Hawes did not file objections to any portion of 

the PSR. 

Arguing that Hawes’ acts of identity theft caused 

substantial harm and inconvenience to his victim, the government 

moved for an upward departure based upon Application Note 19 of 

U.S.S.G. § 2B1.1 (2005). The government also moved for an 

upward variance, arguing that the factors set forth in 18 U.S.C. 

§ 3553(a) merited a sentence greater than the Guidelines range. 

 At the sentencing hearing, the district court heard 

testimony from two of Hawes’ victims, Robert Burke and Eric 

6 
Beltz, as well as Secret Service Agent Phil Carter. During his 

testimony, Burke provided the district court with a detailed 

list of all unpaid credit accounts obtained by Hawes that have 

appeared on Burke’s credit reports, as well as a calculation of 

the additional interest Burke has had to pay as a result of his 

poor credit rating resulting from the identity theft. Burke 

estimated that these unpaid bills and additional interest 

payments amounted to $18,541.00, although he noted that this 

figure did not include the cost he had incurred in investigating 

the identity theft. Burke estimated that he has spent 

“thousands of hours” trying to repair his credit record. J.A. 

46. 

 Beltz testified that his parents had employed Hawes to 

perform work on several rental houses. He testified that Hawes 

had gained his parents’ trust over the years, and that they had 

provided Hawes and his girlfriend financial assistance and had 

showered them with gifts. Beltz testified that Hawes stole his 

identity for approximately two months and incurred approximately 

$8,000 in credit card debt. Beltz testified that because his 

Social Security card is still missing, he has to “keep constant 

check on my credit report. And it’s just been a pain. A big 

pain.” J.A. 68. 

At the sentencing hearing, the district court notified 

Hawes that it was “strongly considering” an upward departure 

7 
and/or variance, and the court continued the hearing to allow 

the parties time to brief the issue. J.A. 38. Following the 

submission of briefs by both parties, the district court held a 

second sentencing hearing. After hearing arguments from 

counsel, the district court announced that it found the 

government’s motion for an upward departure to be “clearly 

warranted” pursuant to Application Note 19 of U.S.S.G. § 2B1.1. 

J.A. 94. Specifically, the district court found that Hawes had 

caused substantial harm and inconvenience to Burke: 

To say that the victim in this case suffered 

substantial inconvenience is so understated, it would 

almost be laughable. Inconvenience doesn’t begin to 

describe what . . . the victim suffered at the hands 

of this defendant. Not only was his reputation and 

credit not repaired, they were destroyed, so much so 

that the victim, Mr. Burke, after years and hours of 

harassing telephone calls, trips to Raleigh, North 

Carolina, identifying fingerprints to separate himself 

from the crimes committed by the defendant, ultimately 

[had] to get up and get a new social security number 

because he could never, ever repair his credit record. 

J.A. 95. The district court further found that Hawes had 

committed crimes in Burke’s name, “to such a degree that the 

people in the prison system, the lawful authorities dealing with 

him, didn’t even known that he was doing so in the victim’s name 

and identity.” J.A. 96. Finally, the district court found that 

not only had Hawes assumed Burke’s identity, he had, through his 

acts of theft, managed to “live[] the victim’s life more fully 

than the victim did,” and the court noted that it did not know 

8 
“of a single case that could be more egregious in that regard 

. . . .” Id.

 Having concluded that an upward departure was warranted, 

the district court found that there was still “a need for an 

upward variance in this case, simply because the facts are so 

unusual and so aggravating.” J.A. 94. Upon reviewing the 

factors set forth in 18 U.S.C. § 3553(a), the district court 

found the need for deterrence, the need for punishment, and the 

need to protect the public from future crimes to be significant 

factors in favor of an upward variance. Of particular import to 

the district court was the fact that Hawes continued to use 

Burke’s identity and stole the identity of another victim 

following his indictment. In the district court’s view, these 

actions demonstrated a lack of remorse or contrition. In the 

end, the district court concluded, “I don’t think there are 

enough resources in the federal arsenal to accomplish 

[rehabilitation] with this defendant. But what I do know is the 

longer he’s incarcerated, the fewer opportunities he’ll have to 

do this to anyone else.” J.A. 99. Accordingly, the district 

court sentenced Hawes to a term of imprisonment of 120 months. 

This appeal followed. 

9 
III. 

A. 

 In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 

160 L. Ed. 2d 621 (2005), the Supreme Court invalidated both 18 

U.S.C. § 3553(b)(1), which made the Sentencing Guidelines 

mandatory, and 18 U.S.C. § 3742(e), which required appellate 

courts to conduct a de novo review of departures from the 

Guidelines. 543 U.S. at 260-62, 125 S. Ct. 738. As a result of 

the Booker decision, the Guidelines are now advisory, and 

appellate courts are limited to reviewing sentencing decisions 

to determine whether such sentences are “reasonable.” Gall v. 

United States, 128 S. Ct. 586, 594, 169 L. Ed. 2d 445 (2007). 

As the Supreme Court has made clear, the “appellate 

‘reasonableness’ review” required by Booker “merely asks whether 

the trial court abused its discretion.” Rita v. United States, 

127 S. Ct. 2456, 2465, 168 L. Ed. 2d 203 (2007). 

 Although the Guidelines are no longer mandatory, they 

remain “the starting point and the initial benchmark” for any 

sentencing decision. Gall, 128 S. Ct. at 596. Thus, in making 

a sentencing determination, the district court should begin by 

calculating the applicable Guidelines range. Id. As the 

Supreme Court has recognized, the advisory Guidelines range 

“reflect[s] a rough approximation of sentences that might 

achieve § 3553(a)’s objectives.” Kimbrough v. United States, 

10 
128 S. Ct. 558, 574, 169 L. Ed. 2d 481 (2007). Consequently, 

using the advisory Guidelines range as a “starting point 

furthers Congress’ desire for efficient administration and 

nationwide consistency in sentencing.” United States v. Pauley, 

511 F.3d 468, 473 (4th Cir. 2007). 

Once the appropriate Guidelines range has been calculated, 

the district court should give the parties “an opportunity to 

argue for whatever sentence they deem appropriate.” Gall, 128 

S. Ct. at 596. The district court then should consider the 

factors set forth in § 3553(a) to determine whether such factors 

support the sentence requested by either party. Id. Those 

factors are as follows: (1) “the nature and circumstances of the 

offense and the history and characteristics of the defendant”; 

(2) “the need for the sentence imposed (A) to reflect the 

seriousness of the offense, to promote respect for the law, and 

to provide just punishment for the offense; (B) to afford 

adequate deterrence to criminal conduct; (C) to protect the 

public from further crimes of the defendant; and (D) to provide 

the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most 

effective manner”; (3) “the kinds of sentences available”; (4) 

the kinds of sentence and the sentencing range established for 

“the applicable category of offense committed by the applicable 

category of defendant as set forth in the guidelines” in effect 

11 
at the time of sentencing; (5) “any pertinent policy statement 

issued by the Sentencing Commission” which is in effect at the 

time of sentencing; (6) “the need to avoid unwarranted sentence 

disparities among defendants with similar records who have been 

found guilty of similar conduct”; and (7) “the need to provide 

restitution to any victims of the offense.” 18 U.S.C.A. 

§ 3553(a). The statute further requires the sentencing court to 

“impose a sentence sufficient, but not greater than necessary, 

to comply with the purposes set forth in paragraph (2) of this 

subsection.” Id.

In determining the appropriate sentence, the district court 

“may not presume that the Guidelines range is reasonable.” 

Gall, 128 S. Ct. at 596-97; Rita, 127 S. Ct. at 2465 (“In 

determining the merits of these arguments, the sentencing court 

does not enjoy the benefit of a legal presumption that the 

Guidelines sentence should apply.”). Rather, the court must 

make an individualized assessment, based upon the facts 

presented, and determine whether a sentence outside of the 

Guidelines is warranted. Gall, 128 S. Ct. at 597. If the 

district court decides to impose a non-Guidelines sentence, the 

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

that the justification is sufficiently compelling to support the 

degree of the variance.” Id. In Gall, the Supreme Court found 

12 
“it uncontroversial that a major departure should be supported 

by a more significant justification than a minor one.” Id. 

As the last step of the sentencing process, the district 

court must provide an adequate explanation of its sentencing 

decision “to allow for meaningful appellate review and to 

promote the perception of fair sentencing.” Id. The district 

court “must give serious consideration to the extent of any 

departure from the Guidelines and must explain his conclusion 

that an unusually lenient or an unusually harsh sentence is 

appropriate in a particular case with sufficient 

justifications.” Id. at 594. In explaining its sentencing 

decision, a district court is not required to “discuss each 

factor set forth in § 3553(a) in checklist fashion”; rather, “it 

is enough to calculate the range accurately and explain why (if 

the sentence lies outside it) this defendant deserves more or 

less.” United States v. Moreland, 437 F.3d 424, 432-33 (4th 

Cir. 2006)(quoting United States v. Dean, 414 F.3d 725, 729 (7th 

Cir. 2005)) (internal quotation marks omitted). 

On appeal, this Court reviews the reasonableness of the 

sentence imposed, whether the sentence is inside or outside the 

Guidelines range, “under a deferential abuse-of-discretion 

standard.” United States v. Abu Ali, 528 F.3d 210, 260 (4th 

Cir. 2008) (quoting Gall, 128 S. Ct. at 591), pet. for cert. 

filed, 77 U.S.L.W. 3242 (Oct. 6, 2008). This review involves 

13 
two steps. First, we must examine the sentence for 

“significant” procedural errors, 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 sentencing based on clearly erroneous 

facts, or failing to adequately explain the chosen sentence – 

including an explanation of the Guidelines range.” Gall, 128 S. 

Ct. at 597. 

 If the district court’s decision is procedurally sound, we 

then consider whether the sentencing decision is substantively 

reasonable. In conducting this review, we must “take into 

account the totality of the circumstances, including the extent 

of any variance from the Guidelines range.” Id. “Under this 

approach, the applicable guidelines range plays an important 

role.” Abu Ali, 528 F.3d at 261. If the sentence is within the 

Guidelines range, we may presume that the sentence is 

reasonable, although such a presumption is not required. Gall, 

128 S. Ct. at 597. If the sentence is outside of the Guidelines 

range, however, we “may not apply a presumption of 

unreasonableness.” Id. “To hold otherwise would fatally 

undermine the Court’s holding in Booker.” Pauley, 511 F.3d at 

473. In reviewing a non-Guidelines sentence, the appellate 

court “may consider the extent of the deviation, but must give 

due deference to the district court’s decision that the 

14 
§ 3553(a) factors, on a whole, justify the extent of the 

variance.” Gall, 128 S. Ct. at 597. “Even if we would have 

reached a different sentencing result on our own, this fact 

alone is ‘insufficient to justify reversal of the district 

court.’” Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at 

597). 

 As always, when considering the reasonableness of a 

sentence, we review the district court’s legal conclusions de 

novo and its factual findings for clear error. Abu Ali, 528 

F.3d at 261. 

B. 

The first step in our review of Hawes’ sentence is a 

determination of whether there were any significant procedural 

errors. 

Hawes concedes that the district court committed no 

procedural errors in determining his sentence.1 The parties are 

in agreement that the district court properly calculated the 

 1

 We note that the district court did not offer Hawes an 

opportunity to allocute until after the court began to impose 

sentence. Failure to afford a defendant the opportunity to 

allocate is reversible error where it can be shown that an 

exercise of the right of allocution could have resulted in a 

lesser sentence. See United States v. Muhammad, 478 F.3d 247, 

249-50 (4th Cir. 2007). Hawes does not challenge this aspect of 

his sentencing, however, and therefore, we consider this issue 

to have been waived on appeal. 

15 
Guidelines range to be 27 to 33 months’ imprisonment. Upon 

calculating the applicable Guidelines range, the district court 

advised Hawes that it was considering an upward variance and/or 

departure and afforded the parties ample opportunity to argue 

their respective positions on the issue. The district court 

then considered the relevant Guideline departure provisions and 

the § 3553(a) sentencing factors and determined that the unique 

facts and circumstances of the case were sufficiently compelling 

to justify a sentence outside of the Guidelines.2 Further, the 

district court provided an adequate explanation of its 

sentencing decision through its oral remarks during the 

sentencing hearing. Accordingly, we conclude that the sentence 

imposed on Hawes was procedurally sound. 

C. 

Having found no significant procedural errors, we now must 

determine whether the sentence is substantively reasonable. 

 2

 While this Court previously has required a sentencing 

court to calculate a Guidelines departure sentence before 

considering the imposition of a variance sentence, see Moreland, 

437 F.3d at 432, this two-step process no longer appears 

necessary under Gall, which merely requires the sentencing court 

to “consider the extent of the deviation and ensure that the 

justification is sufficiently compelling” to support a nonGuidelines sentence. 128 S. Ct. at 597. 

16 
Since Booker, the Supreme Court has stressed that the 

district court’s sentencing decisions are entitled to due 

deference and should be overturned only where the district court 

has abused its discretion. See Rita, 127 S. Ct. at 2465; Gall, 

128 S. Ct. at 597. In Gall, the Supreme Court rejected the 

proposition that the district court must apply a heightened 

standard of review to sentences outside the Guidelines range. 

Gall, 128 S. Ct. at 595. In so doing, the Court explicitly 

rejected any rule that would require “extraordinary” 

circumstances to justify a sentence outside the Guidelines range 

or which would use a “rigid mathematical formula” as a “standard 

for determining the strength of the justifications required for 

a specific sentence.” Id. The Court stressed that “the abuseof-discretion standard of review applies to appellate review of 

all sentencing decisions – whether inside or outside the 

Guidelines range.” Gall, 128 S. Ct. at 596 (emphasis added). 

This deferential standard of review requires appellate 

courts to recognize that, for any given case, there is a range 

of permissible sentences which may be deemed substantively 

reasonable. “[T]here is not a single reasonable sentence but, 

rather, a range of reasonable sentences. Consequently, reversal 

will result if – and only if – the sentencing court’s ultimate 

determination falls outside the expansive boundaries of that 

universe.” United States v. Martin, 520 F.3d 87, 92 (1st Cir. 

17 
2008) (citation omitted). “A sentencing court abuses or exceeds 

its discretion when its decision . . . cannot be located within 

the range of permissible decisions.” United States v. Cutler, 

520 F.3d 136, 157 (2d Cir. 2008)) (quoting United States v. 

Canova, 485 F.3d 674, 679-80 (2d Cir. 2007)) (internal quotation 

marks omitted). Because there is a range of permissible 

outcomes for any given case, an appellate court must resist the 

temptation to “pick and choose” among possible sentences and 

rather must “defer to the district court’s judgment so long as 

it falls within the realm of these rationally available 

choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th 

Cir. 2007), cert. denied, 128 S. Ct. 1917, 170 L. Ed. 2d 778 

(2008); see also United States v. Carter, 538 F.3d 784, 790 (7th 

Cir. 2008) (noting substantive reasonableness “contemplates a 

range, not a point”). 

 Appellate courts also “must give due deference to the 

district court’s decision that the § 3553(a) factors, on a 

whole, justify the extent of the variance.” Gall, 128 S. Ct. at 

597. Such deference is justified because a district judge “is 

in a superior position to find facts and judge their import 

under § 3553(a) in the individual case. The judge sees and 

hears the evidence, makes credibility determinations, has full 

knowledge of the facts and gains insights not conveyed by the 

record.” Id. “It is not for the Court of Appeals to decide de 

18 
novo whether the justification for a variance is sufficient or 

the sentence reasonable.” Id. at 602. 

Of course, the high degree of deference afforded a district 

court’s sentencing decision does not render appellate review 

meaningless. “Gall did not substitute a regime of total 

unreviewability for the fallen regime of Guidelines rigidity.” 

Abu Ali, 528 F.3d at 266. As this Court stated in Moreland, 

“‘reasonableness’ is not a code-word for ‘rubber stamp.’” 437 

F.3d at 433. “The ‘totality of the circumstances’ substantive 

reasonableness calculus demands that we proceed beyond a 

formalistic review of whether the district court recited and 

reviewed the § 3553(a) factors and ensure that the sentence 

caters to the individual circumstances of a defendant, yet 

retains a semblance of consistency with similarly situated 

defendants.” Evans, 526 F.3d at 167 (Gregory, J., concurring). 

Such review is to ensure that the district court has not merely 

provided “lip service” to the § 3553(a) factors, but rather has 

given reasonable weight to such factors as the individual 

circumstances of the case require, so as to achieve the purposes 

of sentencing as set forth in § 3553(a), and has not given 

weight to improper factors. With these principles in mind, we 

now turn to the sentence imposed upon Hawes in the present case. 

19 
D. 

1. 

In his appellate brief, Hawes first contends that the 

district court erred in failing to justify adequately the extent 

of its departure from the top of the applicable Guidelines 

range. Specifically, Hawes relies upon United States v. Dalton, 

477 F.3d 195 (4th Cir. 2007), in support of his argument that 

the district court failed to adopt an incremental approach 

through the criminal history categories or offense levels to 

reach the appropriate sentence. 

In Dalton, this Court remanded for re-sentencing on the 

grounds that the district court in upwardly departing from the 

Guidelines range did not “employ the incremental approach 

dictated by [U.S.S.G.] § 4A1.3(a)(4)(B).” Id. at 199. This 

Guidelines provision governs upward departures from Criminal 

History Category VI and requires district courts to “structure 

the departure by moving incrementally down the sentencing table 

to the next higher offense level in Criminal History Category VI 

until it finds the guidelines range appropriate to the case.” 

Id. Dalton is not binding in the present case, however, as the 

district court which sentenced Hawes did not base its decision 

for upward departure upon § 4A1.3(a)(4)(B), nor was Hawes within 

Criminal History Category VI. As such, Hawes’ reliance on 

Dalton is simply misplaced. 

20 
2. 

Hawes further argues in his brief to this Court that the 

district court’s sentence is “unreasonable on its face” because 

the variance imposed was 264% above the applicable Guidelines 

range. The Supreme Court in Gall, however, explicitly rejected 

the use of such a “rigid mathematical formula . . . as the 

standard for determining the strength of the justifications 

required for a specific sentence.” 128 S. Ct. at 595. Thus, 

the fact that a sentence is 200%, or even 300%, above the 

Guidelines range does not render a sentence unreasonable per se. 

Rather, as the Supreme Court instructed, the relevant inquiry is 

whether the justification for such deviation is “sufficiently 

compelling to support the degree of the variance.” Id. at 597. 

As such, the fact that Hawes’ sentence was well above the 

Guidelines’ range, while relevant, does not of itself render the 

district court’s decision substantively unreasonable. 

3. 

Finally, Hawes argues that the district court’s sentence 

creates an unwarranted disparity among similar defendants 

convicted of similar crimes, and that this disparity is so 

severe that it requires that his sentence be vacated. In so 

arguing, Hawes points this Court to a recent data report of the 

Sentencing Commission detailing the median sentence and median 

21 
departure in identity fraud cases nationwide since the Supreme 

Court’s decisions in Gall and Kimbrough. The fact that Hawes’ 

sentence may be more severe than the average sentence imposed in 

identity fraud cases nationally does not establish that the 

district court’s sentence in the present case failed to address 

the “need to avoid unwarranted sentence disparities” recognized 

in § 3553(a)(6). That is not to say that statistical 

information is never relevant to the sentencing calculus; 

indeed, it is precisely this type of information –- the typical 

sentencing range for the typical defendant charged with a 

particular offense -- which the Sentencing Guidelines themselves 

seek to provide. “[B]y devising a recommended sentencing range 

for every type of misconduct and every level of criminal 

history, the Guidelines as a whole embrace ‘the need to avoid 

unwarranted sentence disparities among defendants with similar 

records who have been found guilty of similar conduct.’” United 

States v. Johnson, 445 F.3d 339, 343 (4th Cir. 2006) (quoting 18 

U.S.C. § 3553(a)(6)). 

The determination of an appropriate sentence in any 

particular case requires an individualized assessment of the 

facts and circumstances presented by that particular defendant. 

While Hawes argues that the Court should consider statistical 

data regarding the median sentence imposed on defendants 

convicted of similar crimes in reviewing his sentence, such data 

22 
does not provide the particulars of the defendants who were 

sentenced and the crimes they committed. As such, this data 

does not provide the information necessary to determine whether 

the defendants who received such sentences are truly comparable 

to the defendant at hand. As this Court found in United States 

v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), a defendant should be 

compared only to other defendants with similar circumstances and 

histories. Id. at 267. Because the Court cannot possibly 

determine the circumstances and histories of each individual 

defendant whose sentences comprise this statistical information, 

the assignment of dispositive weight to this type of data would 

be antithetical to the notion of the individualized assessment 

required for fashioning an appropriate sentence for a particular 

defendant. 

In imposing Hawes’ sentence, the district court calculated 

the advisory Guidelines range, but ultimately concluded that 

this case fell “outside the heartland” of those cases to which 

the advisory Guidelines range was intended to apply. See Rita, 

127 S. Ct. at 2465. Indeed, the district court found that this 

case warranted both a departure under Application Note 19 of 

U.S.S.G. § 2B1.1 and a variance under § 3553(a). Application 

Note 19 provides that an upward departure may be warranted in an 

identity fraud case where: 

23 
(I) The offense caused substantial harm to the 

victim’s reputation or credit record, or the 

victim suffered a substantial inconvenience 

related to repairing the victim’s reputation 

or a damaged credit record. 

(II) An individual whose means of identification 

the defendant used to obtain unlawful means 

of identification is erroneously arrested or 

denied a job because an arrest record has 

been made in that individual’s name. 

(III) The defendant produced or obtained numerous 

means of identification with respect to one 

individual and essentially assumed that 

individual’s identity. 

U.S.S.G. § 2B1.1, app. note 19(A)(vi). As the district court 

properly found, all three elements were clearly satisfied in 

this case. 

First, there can be no doubt that Hawes’ actions of 

identity fraud caused substantial harm and inconvenience to his 

victim. In the more than ten years during which Hawes stole 

Burke’s identity, Hawes incurred unpaid medical bills, credit 

card debt, telephone bills, cable bills, and child support 

obligations in Burke’s name, all of which harmed Burke’s 

reputation and credit record. Burke’s credit record was so 

damaged that Burke was forced to obtain a new Social Security 

number. Burke testified extensively regarding the substantial 

inconvenience and stress he suffered as a result of Hawes’ 

conduct. Burke testified that he could never completely clean 

up his credit report because “new things would pop up all the 

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time. So it was a never-ending nightmare.” J.A. 45. He 

described how “the collection agencies became the worst,” as 

they continued to call him for over ten years for the unpaid 

bills that Hawes incurred in his name. J.A. 45-46. Burke 

testified that for several years, collection agencies called him 

at home and at work on a daily basis. Burke estimated that he 

spent “thousands of hours” trying to repair his credit record. 

J.A. 46. 

Hawes’ actions also caused his victim financial hardship. 

Burke testified that because his credit was destroyed, he had to 

pay 22 percent interest for a car loan, far higher than he 

should have paid. Burke further testified that he had to pay 

higher interest on credit cards, and he could not be the primary 

borrower on his home mortgage. Based upon this evidence, the 

district court did not err in concluding that Hawes had caused 

substantial harm and inconvenience to his victim. 

Second, the evidence establishes that Hawes stole Burke’s 

Social Security card and birth certificate, and that he used 

these means of identification to obtain a driver’s license in 

Burke’s name. Hawes later committed numerous felonies using 

Burke’s identity, and he was arrested, convicted, and 

incarcerated for these crimes. As a result of the substantial 

criminal record incurred in his name, Burke was denied a job 

opportunity that would have paid him more than $20,000 more per 

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year than he had been earning at the time. Burke further 

testified that the criminal record compiled by Hawes had a 

chilling effect on his career over the past ten years because he 

was afraid to leave jobs. Burke was forced to travel to Raleigh 

to be fingerprinted so that state authorities could compare his 

fingerprints to those on every arrest record that Hawes had 

caused authorities to open in Burke’s name. Despite Burke’s 

efforts, his current job at Bank of America was delayed for more 

than one month due to the existence of this criminal record. 

Third, the evidence reflects that Hawes obtained numerous 

means of identification with respect to Burke and essentially 

assumed his identity for more than a decade. Hawes obtained a 

driver’s license in Burke’s name using stolen documents. Using 

Burke’s identity, Hawes married a woman in North Carolina, 

fathered a child, and incurred child support obligations. Hawes 

abandoned this family and moved to South Carolina, where he 

fathered another child with another woman while still pretending 

to be Burke. As Burke testified, “it wasn’t a case of him just 

stealing my identity to get a credit card and spend[ing] a bunch 

of money; he took on my identity. He was living as me in every 

shape and form.” J.A. 51. 

Based upon these facts, the district court was correct in 

determining that an upward departure was warranted pursuant to 

Application Note 19 of § 2B1.1. “When the district court 

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imposes a non-Guidelines sentence based on a correct application 

of the Guideline departure provisions, the resulting sentence 

reflects the judgment of both the district court and the 

Commission that a non-Guidelines sentence is appropriate.” 

Evans, 526 F.3d at 165 n.4. 

In addition to finding that an upward deviation was 

justified pursuant to Application Note 19 of U.S.S.G. § 2B1.1, 

the district court found that the § 3553(a) sentencing factors 

as a whole justified a deviation from the Guidelines in this 

case. In so finding, the district court considered the specific 

“nature and circumstances of the offense,” 18 U.S.C.A. 

§ 3553(a)(1). Specifically, the district court found that Hawes 

had stolen Burke’s identity for more than a decade and had 

caused Burke substantial harm and inconvenience during this 

time. The district court further considered the “history and 

characteristics of the defendant.” Id. Of particular import to 

the district court was the fact that Hawes absconded after his 

indictment. The district court was especially troubled by the 

fact that Hawes not only continued to steal Burke’s identity 

while he was a fugitive, but that he also stole the identity of 

another person. Additionally, when Hawes was finally arrested 

and confronted by Secret Service agents, Hawes dismissed the 

gravity of the harm he had inflicted upon Burke, stating that 

Burke “didn’t have a very good life to begin with.” J.A. 62. 

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The district court found that Hawes’ actions following his 

indictment showed a profound lack of remorse, and that the “need 

for . . . deterrence in this case is greater than any case I’ve 

seen in 11 years on the bench.” J.A. 98. The district court 

further opined that “[t]here is no rehabilitation possible for 

[a] person who so disdains his fellow man as to do what he’s 

done over and over and over.” J.A. 99. 

 While Hawes does not contest that the district court was 

entitled to depart from the Guidelines range in this case, he 

argues that the extent of the deviation itself was unreasonable. 

We cannot agree. Based upon the unique facts presented, the 

district court concluded that a sentence of 120 months’ 

imprisonment was necessary in order “to promote respect for the 

law,” “to provide just punishment for the offense,” “to afford 

adequate deterrence,” and “to protect the public from the 

further crimes of the defendant.” 18 U.S.C.A. § 3553(a)(2). We 

find that the district court did not abuse its discretion in 

this regard. While we may have imposed a different sentence 

than the one chosen by the district court, we cannot say that 

the decision to impose a sentence of 120 months’ imprisonment 

falls outside the range of rational choices available to the 

court. See Pauley, 511 F.3d at 474. “Although the deviation 

from the Guidelines range in this case clearly is significant, 

the district court provided ‘significant justification’ for the 

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29 

degree of the deviation, which is all that is required.” Evans, 

526 F.3d at 163 (affirming sentence of 125 months for defendant 

convicted of identity fraud, where sentence constituted 300% 

upward deviation from advisory Guidelines range). For these 

reasons, we conclude that Hawes’ sentence is substantively 

reasonable. 

IV. 

 After careful review, we are satisfied that the district 

court’s decision to impose a non-Guidelines sentence of 120 

months’ imprisonment was sufficiently justified under the 

circumstances. Accordingly, we affirm the judgment of the 

district court. 

 AFFIRMED