UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4121

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TYRONE MAURICE WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Terrence W. Boyle, 

District Judge. (4:14-cr-00043-BO-1)

Argued: September 20, 2016 Decided: November 18, 2016

Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed in part; vacated in part and remanded with instructions

by unpublished per curiam opinion.

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Barbara 

Dickerson Kocher, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, 

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Raleigh, North Carolina, for Appellant. Thomas G. Walker, 

United States Attorney, Jennifer P. May-Parker, Yvonne V. 

Watford-McKinney, Assistant United States Attorneys, OFFICE OF 

THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for 

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Unpublished opinions are not binding precedent in this circuit.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

Tyrone Maurice Williams was indicted and pled guilty to 

Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (“Count 1”); 

using and carrying a firearm during and in relation to and 

possessing a firearm in furtherance of a crime of violence, in 

violation of 18 U.S.C. § 924(c)(1)(A) (“Count 2”); possession of 

a firearm by a convicted felon, in violation of 18 U.S.C. §§ 

922(g)(1) (“Count 3”); and robbery of a credit union, in 

violation of 18 U.S.C. § 2113(a) (“Count 4”). We affirm 

Williams’ convictions, vacate his sentence, and remand for 

resentencing before a different district judge.

I.

Counts 1 and 2 of the indictment in this case arose out of 

Williams’ robbery of a Dollar General store in New Bern, North 

Carolina, on July 24, 2012. During the robbery, Williams shot 

the store cashier and store manager, inflicting serious physical 

injuries upon both men. Williams then forced the injured 

cashier to open the safe. He fled with $600 in currency. Count 

3 involved an incident occurring in Winterville, North Carolina, 

in August 2012. Police officers responding to a noise complaint 

found Williams and others loitering around a vehicle. When the 

officers approached the group, Williams pulled a handgun from 

his waistband and fled on foot. Williams was apprehended and 

the gun was recovered. Count 4 arose out of Williams’ armed 
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robbery of the First Flight Federal Credit Union in New Bern, 

North Carolina, in February 2014. Williams passed a threatening 

note demanding money to a teller. The teller put $4,373 in 

currency into an envelope and gave it to Williams. Subsequent 

to his arrest, Williams confessed to robbing the credit union, 

robbing the Dollar General store, and shooting the Dollar 

General employees.

Williams pled guilty as charged to all counts without a 

plea agreement. Counts 1 and 4 each carried a maximum statutory 

term of imprisonment of 20 years, and Count 3 carried a maximum 

statutory term of imprisonment of 10 years. The statutory range 

for Count 2 was 10 years to life imprisonment.

The presentence report grouped Counts 1, 3 and 4. 

Williams’ adjusted offense level for Count 1 was 30, which 

included a 10-level increase for infliction of permanent or 

life-threatening bodily injury and abduction of a person to 

facilitate the commission of an offense. The adjusted offense 

levels for Counts 3 and 4, respectively, were 14 and 24. Under 

the grouping rules, the highest offense level of 30 was 

increased by 1, resulting in a combined adjusted offense level 

of 31. A 3-level reduction for acceptance of responsibility 

reduced the total offense level to 28. With a criminal history 

category of IV, Williams’ advisory Guidelines sentencing range 

was 110 to 137 months’ imprisonment. Count 2 required 
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imposition of a consecutive sentence and was excluded from the 

grouping rules. The advisory Guidelines sentence for Count 2 

was the statutory minimum 10-year term of imprisonment. Neither 

Williams nor the government objected to the presentence report.

The district court held a sentencing hearing on January 21, 

2015. The district court began the hearing by asking Williams 

if he “want[ed] to say anything about the punishment [he would] 

receive,” to which Williams simply responded, “No, Sir.” J.A. 

24. What followed can only be described (at best) as a testy 

exchange between the district court and Williams about Williams’ 

crimes and the district court’s view that Williams was not 

remorseful. The district court began by demanding to know why 

Williams “tr[ied] to murder” the Dollar General employees. J.A. 

24. When Williams stated that he “didn’t try to murder them” 

and that “it wo[uld]n’t happen” again, the district court 

informed Williams that “[i]t won’t happen because I’m going to 

put you in jail forever.” J.A. 25. When Williams acknowledged 

that he could not “change what happened,” but did “have the 

opportunity to apologize” and “grow from it and become . . . a 

better person,” the district court told Williams that there were 

“some things you can’t apologize for” and that “[i]n some 

societies they would just eliminate you. . . . You won’t have 

to worry about getting better, you would be gone.” J.A. 27.
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The district court then heard from the Dollar General 

victims about the effect the incident had upon their lives and 

the lives of their families. The district court stated that in 

more than three decades it had “never heard an allocution as 

powerful” as those offered by the victims and that, in contrast, 

Williams had been “brazen enough to look at these people whose 

lives he has crushed and driven into the ground with virtually 

no remorse.” J.A. 41. The district court further stated that 

it could not “see any justification for a sentence below the 

maximum that the statute and law would permit,” and suggested 

that the “appellate courts c[ould] listen to and read the 

testimony of the witnesses and the lack of contrition on the 

part of the defendant.” J.A. 42.

At the conclusion of the hearing, the district court 

imposed a total term of imprisonment of 480 months. On Counts 1 

and 4 (the two robbery charges), the district court imposed 

concurrent statutory maximum sentences of 240 months. The 

district court also imposed the statutory maximum sentence of 

120 months for Count 3 (the felon-in-possession charge), but 

ordered that it run consecutively to the other counts in the 

group. This resulted in a sentence of 360 months on the three 

grouped counts. The district court then added the mandatory 

minimum sentence of 120 months on Count 2, raising the total 

term of imprisonment to 480 months.
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The next day, however, the district court sua sponte gave 

notice to the parties of its intent to reopen the sentencing 

proceeding, and the court scheduled a hearing for January 27. 

At the inception of the hearing, the district court sought 

agreement from the government and Williams’ counsel that it had 

the power to reopen the sentencing proceeding and change 

Williams’ sentence. Both agreed that it did.

After “incorporat[ing] by reference everything that was 

said including the allocution participation at the last 

hearing,” the district court stated that, “after thinking about 

how [it] imposed [the 480-month] sentence[,] [it] want[ed] to go 

back and remove that and consider a different approach to it.” 

J.A. 51. The district court, upon “reflection,” then imposed a 

total prison term of 360 months. J.A. 52. For grouped Counts 

1, 3, and 4, the district court imposed a within-guidelines 

sentence of 120 months. For Count 2, the district court varied 

upward and imposed a consecutive sentence of 240 months (double 

the mandatory minimum and well below the statutory maximum of 

life imprisonment).

The district court explained its reconsideration of the 

480-month sentence. First, the district court judge advised 

that he had been under the mistaken impression at the initial 

sentencing hearing that the maximum sentence that he could 

impose for Count 2 was 10 years’ imprisonment. Second, the 
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district court judge observed that “under the guidelines and 

under sentencing law and taking 3553(a) into account,” Count 2 

was “the place where I should [have] upwardly depart[ed],” J.A. 

52, because “the use of the firearm [was] the salient object in 

this case that caused all the damage,” J.A. 54. Finally, the 

district court explained that “[i]n the fast moving way in which 

the hearing went dominated by the allocution there wasn’t enough 

time to think about what an appropriate upward departure would 

be. And I believe after reflection this is what I should do.” 

J.A. 53.

On appeal, Williams challenged his convictions on Counts 1 

and 2, and his 360-month sentence as substantively unreasonable. 

The government did not appeal. We directed the parties to file 

supplemental briefs addressing the question of whether the 

district court had jurisdiction to reopen the sentencing 

proceeding and reduce Williams’ sentence to 360 months. We also 

requested the parties to supplement their briefs to address the 

question of whether the 480-month sentence imposed by the 

district court was substantively reasonable.

II.

Williams challenges his convictions on Counts 1 and 2 on 

the basis that the Hobbs Act is unconstitutional under the 

Commerce Clause of the United States Constitution. As Williams 

acknowledges, this argument is foreclosed by precedent. See
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United States v. Williams, 342 F.3d 350, 354 (4th Cir. 2003). 

Accordingly, we affirm his convictions.

III.

With regard to Williams’ sentence, we conclude that the 

district court lacked jurisdiction to modify Williams’ sentence 

from 480 months to 360 months, and thus it is the 480-month 

sentence that we review. Because we hold that the 480-month 

sentence was unreasonable, we vacate that sentence and remand 

for resentencing.

A.

Rule 35(a) of the Federal Rules of Criminal Procedure–the 

provision upon which Williams relies to support the district 

court’s jurisdiction-provides that “[w]ithin 14 days after 

sentencing, the court may correct a sentence that resulted from 

arithmetical, technical, or other clear error.” Fed. R. Crim. 

P. 35(a). “‘[S]entencing’ means the oral announcement of the 

sentence.” Fed. R. Crim. P. 35(c); United States v. Layman, 116 

F.3d 105, 108 (4th Cir. 1997). The district court’s authority 

to modify a sentence under Rule 35(a) is “severely limited.” 

Id. “The rule ‘is not intended to afford the opportunity to 

reconsider the application or interpretation of the sentencing 

guidelines or for the court simply to change its mind about the 

appropriateness of the sentence.’” Id. (quoting Fed. R. Crim. 

P. 35, Advisory Committee Notes on 1991 Amendments); see also
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United States v. Fields, 552 F.3d 401, 405 (4th Cir. 2009) 

(“Congress limited the reach of Rule 35(a) because it wanted to 

promote openness and finality in sentencing.”). 

Here, the district court orally announced Williams’ prison 

sentence on January 21, 2015, and resentenced Williams six days 

later because the court, “upon reflection,” changed its mind 

about the ground for the upward departure and the appropriate 

extent of the departure. J.A. 52. The district court lacked 

the power to do so. See Fields, 552 F.3d at 404-05; Layman, 116 

F.3d at 108. Because the 360-month sentence was issued without 

jurisdiction, we therefore deem it to be of no effect and not 

subject to appellate review. The operative sentence for our 

review is the 480-month sentence imposed on January 21, 2015.

B.

Williams contends that the district court abused its 

discretion in imposing the 480-month sentence. We agree.

Under 18 U.S.C. § 3553(a), district courts must consider 

“the nature and circumstances of the offense and the history and 

characteristics of the defendant,” and “impose a sentence 

sufficient, but not greater than necessary, to comply with” the 

statutory purposes of sentencing. Those purposes include “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 
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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.” 18 U.S.C. § 3553(a)(2)(A)-(D).

Generally speaking, the district court must begin the 

sentencing process with a correct calculation of the applicable 

Guidelines range. See Gall v. United States, 552 U.S. 38, 49 

(2007). “[T]he district court should then consider all of the § 

3553(a) factors to determine whether they support [a particular] 

sentence.” Id. at 49-50. “After settling on the appropriate 

sentence, [the district court] must adequately explain the 

chosen sentence to allow for meaningful appellate review and to 

promote the perception of fair sentencing.” Id. at 50. “The 

farther the court diverges from the advisory guideline range,

the more compelling the reasons for the divergence must be.” 

United States v. Hampton, 441 F.3d 284, 288 (4th Cir. 2006) 

(internal quotation marks omitted).

When reviewing the substantive reasonableness of a 

sentence, we “examine the totality of the circumstances to see 

whether the sentencing court abused its discretion in concluding 

that the sentence it chose satisfied the standards set forth in 

§ 3553(a).” United States v. Gomez–Jimenez, 750 F.3d 370, 383 

(4th Cir. 2014) (internal quotation marks and alteration 
12

omitted). And where, as here, the sentencing court has imposed

a sentence that varies upward from the advisory Guidelines 

sentence, we must determine “whether the sentencing court acted 

reasonably both with respect to its decision to impose such a 

sentence and with respect to the extent of the divergence from 

the sentencing range.” United States v. Washington, 743 F.3d 

938, 944 (4th Cir. 2014) (internal quotation marks omitted); 

Gall, 552 U.S. at 50. We “must give due deference to the 

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

whole, justify the extent of the variance.” United States v. 

Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007) (internal quotation 

marks omitted). “This deference is due in part because the 

sentencing judge is in a superior position to find facts and 

judge their import and the judge sees and hears the evidence, 

makes credibility determinations, has full knowledge of the 

facts and gains insights not conveyed by the record.” United 

States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011) 

(internal quotation marks and alterations omitted).

No one can doubt the breadth and severity of Williams’ 

crimes. And we cannot say at this juncture that a district 

court’s decision to vary from the advisory Guidelines sentence 

in some way and in some measure could not be justified by the § 

3553(a) factors. However, it is our duty to consider the 

totality of the circumstances that led to the district court’s 
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decision to impose a specific variant sentence, along with the 

reasoned basis articulated by the district court for its 

decision. Having taken these things into consideration, we must 

conclude that the district court abused its discretion.

First, the extent of the variance was significant. The 

Guidelines sentencing range for grouped Counts 1, 3, and 4 was 

110-137 months’ imprisonment. Although it would not alone 

render the sentence unreasonable, we note that the adjusted 

offense level for Count 1, which carried the highest adjusted 

offense level for the group, had already taken into account the 

fact that Williams inflicted serious bodily injury upon the 

Dollar General victims. By imposing the statutory maximum 

sentences on Counts 1 and 4, removing Count 3 from the group, 

and imposing a consecutive instead of concurrent statutory 

maximum sentence on Count 3, the district court imposed a total 

sentence (360 months) for the grouped counts that was more than 

2 1/2 times the top of the advisory range, before adding the 

mandatory minimum 10-year term on Count 2. The end result was a 

40-year sentence that was more than 18 1/2 years above the 

maximum advisory Guidelines sentence for all offenses.

Second, while we would normally be required to give due 

deference to a district court’s application of the § 3553(a) 

factors and its concomitant determination that the variant 

sentence imposed was sufficient, but not greater than necessary, 
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to comply with the purposes set forth in § 3553(a), such 

deference is largely unwarranted under the unusual circumstances 

of this case. Here, the district court’s determination, while 

ostensibly grounded in the § 3553(a) factors, was clearly 

affected by other matters. The record of the sentencing 

proceeding clearly conveys an unusually high degree of emotion, 

no doubt ignited by the district court’s displeasure with 

Williams’ decision not to allocute, and then fueled by the 

allocutions that were offered by the Dollar General victims. 

And contrary to the district court’s belief at the time, our 

reading of the record does not automatically cause us to reject 

Williams’ professed remorse for his actions. As the district 

court would later admit, the sentencing hearing was at least in 

some measure tainted by “the fast moving way in which the 

hearing went[,] dominated by the allocution,” so as not to allow 

“enough time to think about what an appropriate upward departure 

would be,” J.A. 53, and by its misinterpretation of the 

presentence report and failure to understand that it could have 

varied on the count that most troubled the court – Williams’ use 

of the firearm to shoot the victims. Although the district 

court’s change of heart alone does not suffice to establish the 

unreasonableness of the sentence, the events that occurred 

during the “resentencing” hearing do confirm our concerns about 

the sentence that was imposed at the first sentencing hearing.
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To conclude, we are unable to say on the existing record 

that the district court “acted reasonably both with respect to 

its decision to impose [the variant] sentence and with respect 

to the extent of the divergence from the sentencing range.” 

Washington, 743 F.3d at 944 (internal quotation marks omitted). 

Nor would our doing so in these circumstances “promote the 

perception of fair sentencing.” Gall, 552 U.S. at 50. 

“Inherent in the concept of reasonableness is the notion that 

the rare sentence may be unreasonable, and inherent in the idea 

of discretion is the notion that it may, on infrequent occasion, 

be abused.” United States v. Howard, 773 F.3d 519, 536 (4th 

Cir. 2014) (internal quotation marks omitted). “This case 

presents an example of that rare sentence presented to us on 

those infrequent occasions.” Id. Accordingly, we vacate the 

480-month sentence imposed by the district court as 

substantively unreasonable. In light of the circumstances, we 

also think a fresh start is in order. Accordingly, we will 

remand the case to a different district judge for resentencing. 

IV.

For the foregoing reasons, we affirm Williams’ convictions, 

vacate his sentence as unreasonable, and remand for resentencing 

before a different district judge.

AFFIRMED IN PART; VACATED IN PART

AND REMANDED WITH INSTRUCTIONS