UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4250

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DIANE CONWAY HUTCHISON,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:12-cr-00004-MR-DLH-1)

Submitted: October 23, 2013 Decided: November 6, 2013

Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL 

DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North 

Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Melissa L. Rikard, Assistant United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Diane Conway Hutchison appeals the twenty-one month 

sentence imposed after she pled guilty to one count of wire 

fraud, in violation of 18 U.S.C. § 1343 (2006). The district 

court imposed this sentence after departing upward one criminal 

history category pursuant to U.S. Sentencing Guidelines Manual

(USSG) § 4A1.3 (2012), based on its conclusion that Hutchison’s

criminal history category of I underrepresented her prior 

criminal conduct. Hutchison argues on appeal that the district 

court procedurally erred in failing to address her arguments 

against the departure and substantively erred in relying on an 

inaccurate factual premise to support the departure. We 

conclude that Hutchison’s claims are meritorious, and 

accordingly vacate her sentence and remand for resentencing.

We review a sentence for procedural and substantive 

reasonableness under an abuse of discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). The same standard 

applies whether the sentence is “inside, just outside, or 

significantly outside the Guidelines range.” United States v. 

Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.) (internal 

citation and quotation marks omitted), cert. denied, 133 S. Ct. 

274 (2012). In determining procedural reasonableness, we

consider whether the district court properly calculated the 

defendant’s advisory Guidelines range, gave the parties an 
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opportunity to argue for an appropriate sentence, considered the 

18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on 

clearly erroneous facts, and sufficiently explained the selected 

sentence. Gall, 552 U.S. at 49-51. In reviewing any sentence 

outside the Guidelines range, the appellate court must give due 

deference to the sentencing court’s decision because it has 

“flexibility in fashioning a sentence outside of the Guidelines 

range,” and need only “set forth enough to satisfy the appellate 

court that it has considered the parties’ arguments and has a 

reasoned basis” for its decision. United States v. DiosdadoStar, 630 F.3d 359, 364 (4th Cir. 2011) (citing Gall, 552 U.S. 

at 56); see also United States v. Carter, 564 F.3d 325, 328 (4th 

Cir. 2009) (sentencing court “must make an individualized 

assessment based on the facts presented”) (citation and emphasis 

omitted).

Hutchison first contends that the district court 

failed to comply with the mandate of Gall and United States v. 

Lynn, 592 F.3d 572, 581 (4th Cir. 2010), that the sentencing 

court address the defendant’s non-frivolous arguments for a 

sentence within the Guidelines range. The Government argues 

that the sentence is procedurally reasonable and that any error 

by the district court was harmless. The district court 

recognized that Hutchison’s criminal history was properly 

determined in category I because Hutchison’s seven prior 
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embezzlement convictions could not be counted separately. USSG 

§ 4A1.2(a)(2). Other than noting that category I is the same 

category as a defendant with no prior criminal history, the 

court’s explanation for its sentence did not address Hutchison’s 

arguments against a departure. Nor did the court address those 

arguments at any other point in the sentencing proceedings. 

Thus, contrary to the Government’s assertions, we conclude that 

the court procedurally erred. Further, the error was not 

harmless, as there is no indication in the record that the court 

would have imposed the same sentence if it had addressed

Hutchison’s arguments.

Hutchison also argues that the court substantively 

erred in characterizing her seven prior embezzlement convictions 

as providing repeated opportunities for rehabilitation. The 

Government argues that this is merely a recharacterization of 

the procedural argument asserted by Hutchison, and that the 

court acted within its discretion in imposing the sentence. We 

conclude that, although Hutchison asserts this is a substantive 

error, the district court procedurally erred in its 

characterization of Hutchison’s criminal history, specifically 

that she “having been given repeated opportunities, simply did 

not get the message.” The record reveals that Hutchison was 

convicted in 1998 of seven counts of embezzlement arising from 

her thefts from an employer over a seven-month period in 1994. 
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Hutchison apparently pled guilty and was sentenced for all seven 

counts on the same day. Thus, contrary to the district court’s 

statement, Hutchison did not have repeated opportunities to 

learn from her prior crimes, and the court relied on an 

inaccurate factual basis for its departure. 

The Government argues that the sentence is reasonable 

based on the district court’s reference to the § 3553(a) 

factors. The court did not, however, impose a variance 

sentence, but a departure sentence. Although the court invoked 

certain § 3553(a) factors, nowhere in its explanation did the 

court state that, even without the departure, it would have 

imposed the same sentence as an upward variance from the 

Guidelines range.

We therefore vacate Hutchison’s sentence and remand 

for resentencing.*

 We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before this Court and argument would not aid the 

decisional process.

VACATED AND REMANDED

 * Having found procedural error, we express no opinion on 

the substantive reasonableness of Hutchison’s sentence. On 

remand, the district court is free to determine whether a 

sentence outside the calculated Guidelines range is appropriate.