PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 05-4476

BRIAN A. MORELAND,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 05-4571

BRIAN A. MORELAND,

Defendant-Appellee. 

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph Robert Goodwin, District Judge.

(CR-04-142)

Argued: December 2, 2005

Decided: February 22, 2006

Before WILKINS, Chief Judge, LUTTIG, Circuit Judge, and

Walter D. KELLEY, Jr., United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed in part; vacated and remanded in part by published opinion.

Chief Judge Wilkins wrote the opinion, in which Judge Luttig and

Judge Kelley joined. 
COUNSEL

ARGUED: Matthew Anthony Victor, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West Virginia, for Appellant/CrossAppellee. Hunter P. Smith, Jr., Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West

Virginia, for Appellee/Cross-Appellant. ON BRIEF: Kasey Warner,

United States Attorney, Charleston, West Virginia, for

Appellee/Cross-Appellant.

OPINION

WILKINS, Chief Judge: 

Brian A. Moreland appeals his convictions on two counts of possession with the intent to distribute cocaine base, see 21 U.S.C.A.

§ 841(a)(1) (West 1999). The Government cross-appeals Moreland’s

sentence,1 arguing that the district court acted unreasonably in imposing a sentence of ten years imprisonment—a two-thirds reduction

from the bottom of the advisory guideline range. We affirm Moreland’s convictions. However, we agree with the Government that the

sentence imposed by the district court is unreasonable. We therefore

vacate it and remand for resentencing. 

I.

The facts, viewed in the light most favorable to the Government,

are as follows. At some point prior to July 16, 2004, confidential

informant Martin Williamson informed West Virginia law enforcement officers that an individual nicknamed "Bones" would be coming

1Moreland also challenges his sentence, maintaining that he is entitled

to a jury finding regarding his prior convictions under Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000) (holding that "other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt"). This claim is without merit. See

United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.), cert. denied, 126

S. Ct. 640 (2005). 

2 UNITED STATES v. MORELAND
to Williamson’s house for the purpose of selling cocaine base.

"Bones" arrived at Williamson’s home on July 16, but did not stay.

Rather, he dropped off Moreland, whom Williamson knew slightly.

Moreland’s intent was to sell cocaine base, and Williamson invited

him to stay at the residence. 

Williamson then called State Trooper Anthony Perdue to arrange

a controlled purchase of cocaine base. During the afternoon of the

16th, State Trooper Travis Berry arrived at the home in a vehicle

driven by Trooper Perdue. Williamson spoke with the officers and

then admitted Trooper Berry to the home, where Trooper Berry purchased 5.93 grams of cocaine base from Moreland. Trooper Berry

paid for the narcotics with marked bills. 

Later that day, Williamson informed the officers that additional

cocaine base would shortly be delivered to the house. After surveilling the area for several hours without any such delivery occurring,

the officers decided to proceed with an arrest of Moreland. At approximately 2:00 a.m., a group of several officers, including Trooper Perdue, gathered at Williamson’s residence. 

One of the officers knocked on the door. Without opening it, Williamson asked who was there. Unable to understand the officers’

response, he asked again. Finally, Williamson opened the door. At the

hearing on Moreland’s suppression motion, Williamson testified that

the officers were "welcome" to enter his home once he realized who

they were. J.A. 31. However, the officers did not explicitly ask for,

and Williamson did not explicitly give, consent to a search. The officers instead directed Williamson to stand aside and entered the residence, where they arrested Moreland. At the time of his arrest,

Moreland was in possession of 1.92 grams of cocaine base and almost

$1,000 in cash, including $420 of the marked currency used for the

controlled purchase. Moreland was thereafter charged with two

counts of possessing cocaine base with the intent to distribute it. 

A jury convicted Moreland of both counts. Thereafter, a presentence report was prepared that recommended sentencing Moreland as

a career offender, see United States Sentencing Guidelines Manual,

§ 4B1.1 (2004), and correctly calculated an advisory guideline range

of 360 months to life imprisonment. The district court accepted MoreUNITED STATES v. MORELAND 3
land’s contention that this guideline range "grossly overstate[d] [his]

prior criminal conduct." J.A. 271. The district court concluded that a

360-month sentence would be unreasonable in light of the circumstances of Moreland’s current and prior offenses and the other factors

outlined in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). See

United States v. Moreland, 366 F. Supp. 2d 416, 419-25 (S.D. W. Va.

2005). The district court sentenced Moreland to the statutory minimum of ten years imprisonment. 

II.

Moreland raises several challenges to his convictions. He maintains

that the district court erred in denying his motion to suppress the evidence seized during the post-arrest search; that the court erred in

admitting Government Exhibits 1 and 2, the cocaine obtained from

Moreland; and that the court should not have allowed lab technician

Carrie Kirkpatrick to testify as an expert regarding the identity of the

substances obtained from Moreland.2 We will address these claims

seriatim. 

A.

Prior to trial, Moreland moved to suppress the evidence obtained

during the post-arrest search, maintaining that the law enforcement

officers violated the Fourth Amendment when they entered Williamson’s home to arrest Moreland without a search warrant or Williamson’s consent. See Steagald v. United States, 451 U.S. 204, 205-06

(1981) (holding that absent exigent circumstances, law enforcement

officers must obtain a search warrant or consent prior to entering a

home for the purpose of effecting an arrest). We affirm the ruling of

the district court. 

2Moreland additionally maintains that the district court should have

authorized the disclosure of information regarding the composition of the

grand jury that indicted him or at least should have reviewed the information in camera. Because Moreland made no showing "that a ground

may exist to dismiss the indictment because of a matter that occurred

before the grand jury," Fed. R. Crim. P. 6(e)(3)(E)(ii), we hold that the

district court did not abuse its discretion in denying the request, see In

re Grand Jury Subpoena, 223 F.3d 213, 219 (3d Cir. 2000) (stating standard of review). 

4 UNITED STATES v. MORELAND
The Fourth Amendment to the United States Constitution prohibits

"unreasonable searches and seizures." U.S. Const. amend. IV. And, it

is well settled that a search conducted without a warrant is per se

unreasonable unless it falls within one of the "specifically established

and well-delineated exceptions" to the warrant requirement. Katz v.

United States, 389 U.S. 347, 357 (1967). Voluntary consent to a

search is such an exception. See Schneckloth v. Bustamonte, 412 U.S.

218, 219 (1973). 

There is no question that consent to search can be implied from a

person’s words, gestures, or conduct. See, e.g., United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003) (citing cases). It is the Government’s burden, however, to establish the existence of such consent.

See Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion).

"This burden is heavier where consent is not explicit, since consent

is not lightly to be inferred." United States v. Impink, 728 F.2d 1228,

1232 (9th Cir. 1984) (internal quotation marks omitted). In determining whether consent to search was freely and voluntarily given, the

factfinder must examine the totality of the circumstances surrounding

the consent. See Schneckloth, 412 U.S. at 227. In reviewing the denial

of a motion to suppress, we review the factual findings of the district

court for clear error and its legal conclusions de novo. See United

States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997). 

The district court relied on United States v. Williams, 106 F.3d

1173 (4th Cir. 1997). In Williams, this court found that a confidential

informant had implicitly consented to a search of mail addressed to

him (and in which he had a reasonable expectation of privacy) when

that mail was delivered to a government-controlled post office box at

the behest of the confidential informant. See Williams, 106 F.3d at

1177-78. The Williams panel relied on United States v. Kurck, 552

F.2d 1320, 1321 (8th Cir. 1977) (per curiam), in which a confidential

informant’s cooperation with the Secret Service—particularly, his use

of government funds to purchase counterfeit money and his agreement to use his vehicle to lead agents to the counterfeiters—

established the informant’s implied consent to the search of the vehicle. 

In light of the facts found by the district court, the denial of the

motion to suppress was not error. Testimony at the suppression hearUNITED STATES v. MORELAND 5
ing established that Williamson had a close working relationship with

law enforcement and that he had allowed an undercover officer into

his home to purchase drugs from Moreland. Moreover, Williamson

testified that the officers were "welcome" to enter his home even

though they did not ask his permission to do so. Cf. United States v.

Albrektsen, 151 F.3d 951, 955 (9th Cir. 1998) (concluding that defendant who moved aside from hotel room door did not implicitly consent to a search when the defendant knew that "entry was going to be

made with or without permission"). 

B.

Moreland next challenges the admission of Government Exhibits 1

and 2, which consisted of the cocaine purchased from Moreland and

seized from him following his arrest. We conclude that the district

court did not abuse its discretion in admitting the exhibits. See United

States v. White, 405 F.3d 208, 212 (4th Cir.) (stating standard of

review), cert. denied, 126 S. Ct. 668 (2005). 

At trial, Trooper Perdue identified Government Exhibit 1 as the

5.93 grams of cocaine base purchased by Trooper Berry, and Government Exhibit 2 as the 1.92 grams of cocaine base seized after Moreland’s arrest. Subsequently, however, Trooper Berry identified

Exhibit 2 as the purchased cocaine base, noting that his initials were

on a piece of tape on the packaging. The Government recalled

Trooper Berry, who reiterated that the purchased cocaine base was

Exhibit 1; he surmised that the packaging had been confused at the

lab. Over Moreland’s objection, the district court admitted the exhibits into evidence. 

We conclude that the district court did not abuse its discretion.

Trooper Berry’s testimony regarding the chain of custody was sufficient to allow the jury to conclude that the substances in Exhibits 1

and 2 were the substances obtained from Moreland. See Fed. R. Evid.

901(a); United States v. Gonzalez, 940 F.2d 1413, 1421 (11th Cir.

1991). The conflict in the officers’ testimony regarding the exhibits

goes to the weight of the exhibits, not their admissibility. See United

States v. Rodriguez, 968 F.2d 130, 143 (2d Cir. 1992). 

6 UNITED STATES v. MORELAND
C.

The Government offered the testimony of Carrie Kirkpatrick, an

employee of the West Virginia State Police forensic laboratory, for

the purpose of establishing that the substances obtained from Moreland were cocaine base. The Government sought to have her certified

as an expert, and Moreland challenged this classification. The district

court stated that it had "never found it necessary . . . to characterize

a witness one way or the other," but rather that it would simply rule

on the admissibility of her testimony. J.A. 166. 

After Kirkpatrick identified the substances obtained from Moreland

as cocaine base, Moreland vigorously cross-examined her as to her

methodology. Among other things, this cross-examination revealed

that Kirkpatrick could not identify what type of chemical reaction was

taking place (e.g., combustion, synthesis, decomposition, or displacement), did not know the error rate for the tests she used, and did not

know the expiration date on the chemicals she used. Although she

knew what chemicals she used in the tests, she could not identify the

chemical structure of all of them. Kirkpatrick did testify, however,

that the West Virginia lab followed protocols for testing the substances that were "accepted in the scientific community throughout

the United States," id. at 182, that the machine she used was calibrated on a daily basis (although she could not specifically recall the

machine being calibrated on the day she tested the cocaine base

obtained from Moreland), and that reviews of her work had consistently demonstrated it to be error-free.

Moreland challenges the admission of Kirkpatrick’s testimony,

arguing that her deficiencies as a witness should have precluded her

from testifying regarding the composition of the substances obtained

from him. This challenge fails because the district court did not abuse

its discretion in finding Kirkpatrick’s testimony admissible. See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (stating standard of review). 

The introduction of expert opinion testimony is governed by Federal Rule of Evidence 702, which provides: 

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to

UNITED STATES v. MORELAND 7
determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise, if (1)

the testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods

reliably to the facts of the case. 

Expert testimony is admissible under Rule 702 if it concerns

(1) scientific, technical, or other specialized knowledge that (2) will

aid the trier of fact to understand or resolve a fact at issue. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). The

first prong of this inquiry necessitates an examination of whether the

reasoning or methodology underlying the expert’s proffered opinion

is reliable—that is, whether it is supported by adequate validation to

render it trustworthy. See id. at 590 & n.9. The second prong of the

inquiry requires an analysis of whether the opinion is relevant to the

facts at issue. See id. at 591-92. 

A district court considering the admissibility of expert testimony

exercises a gatekeeping function to assess whether the proffered evidence is sufficiently reliable and relevant. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). The inquiry to be undertaken by

the district court is "a flexible one" focusing on the "principles and

methodology" employed by the expert, not on the conclusions

reached. Daubert, 509 U.S. at 594-95. In evaluating the admissibility

of the testimony, the court should consider a variety of factors,

including whether the method used is generally accepted in the scientific community; the rate of error, if known; the existence and maintenance of standards; and whether the expert’s work has been subjected

to peer review. See Anderson v. Westinghouse Savannah River Co.,

406 F.3d 248, 261 (4th Cir. 2005), petition for cert. filed, 74 U.S.L.W.

3309 (Nov. 7, 2005) (No. 05-616). The court need not determine that

the proffered expert testimony is irrefutable or certainly correct. See

Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th Cir. 1996). As

with all other admissible evidence, expert testimony is subject to testing by "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Daubert, 509

U.S. at 596.

8 UNITED STATES v. MORELAND
With these standards in mind, the district court did not err in allowing Kirkpatrick to testify that the substances obtained from Moreland

were cocaine base. Kirkpatrick testified that her testing methods were

accepted in the relevant scientific community and were subject to

quality control measures; she also testified regarding the standards

against which her test results were measured. Although Kirkpatrick

had significant gaps in her knowledge, these gaps were relevant to the

weight of her testimony, not its admissibility. We therefore affirm the

ruling of the district court. 

III.

Having addressed Moreland’s challenges to his convictions, we

now consider the Government’s appeal of the sentence imposed by

the district court. For the reasons set forth below, we vacate the sentence and remand for resentencing. 

A.

In United States v. Booker, 125 S. Ct. 738, 756 (2005), the

Supreme Court held that the Sixth Amendment right to a jury trial is

violated when the district court, acting pursuant to a mandatory guidelines system, imposes a sentence greater than the maximum authorized by the facts found by the jury alone. To remedy this problem,

the Court severed and excised the provisions of the Sentencing

Reform Act3 that mandated sentencing and appellate review in conformance with the guidelines. See Booker, 125 S. Ct. at 764 (severing

and excising 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) and 18

U.S.C.A. § 3742(e) (West 2000 & Supp. 2005)). This excision rendered the guidelines "effectively advisory," id. at 757, and replaced

the previous standard of review with review for reasonableness, see

id. at 765-66. 

That the guidelines are non-binding in the wake of Booker does not

mean that they are irrelevant to the imposition of a sentence. To the

3Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch. II, 98 Stat.

1987-2040 (1984) (codified as amended at 18 U.S.C.A. §§ 3551-3742

(West 2000 & Supp. 2005) and at 28 U.S.C.A. §§ 991-998 (West 1993

& Supp. 2005)). 

UNITED STATES v. MORELAND 9
contrary, remaining provisions of the Sentencing Reform Act require

the district court to consider the guideline range applicable to the

defendant and pertinent policy statements of the Sentencing Commission. See 18 U.S.C.A. § 3553(a)(4), (a)(5); Booker, 125 S. Ct. at 767

(stating that district courts "must consult [the] Guidelines and take

them into account when sentencing"). In addition to the guidelines,

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

offense and the history and characteristics of the defendant," 18

U.S.C.A. § 3553(a)(1); the court also must ensure that the sentence it

imposes "fulfill[s] the congressionally established objectives for sentencing: promoting respect for the law; providing just punishment for

the offense; affording adequate deterrence; protecting the public from

further criminal activity of the defendant; providing the defendant

training, medical care, and correctional treatment; . . . providing restitution to victims," and avoiding unwarranted sentencing disparities.

United States v. Green, 2006 WL 267217, at *4 (4th Cir. Feb. 6,

2006); see 18 U.S.C.A. § 3553(a)(2), (a)(3), (a)(6), (a)(7). 

Thus, in imposing a sentence after Booker, the district court must

engage in a multi-step process. First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005). Next, the court must "determine whether a sentence within that

range . . . serves the factors set forth in § 3553(a) and, if not, select

a sentence [within statutory limits] that does serve those factors."

Green, 2006 WL 267217, at *4. In doing so, the district court should

first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law. (We will return to this subject

momentarily.) If an appropriate basis for departure exists, the district

court may depart. If the resulting departure range still does not serve

the factors set forth in § 3553(a), the court may then elect to impose

a non-guideline sentence (a "variance sentence"). The district court

must articulate the reasons for the sentence imposed, particularly

explaining any departure or variance from the guideline range. See 18

U.S.C.A. § 3553(c) (West Supp. 2005); Hughes, 401 F.3d at 546 &

n.5. The explanation of a variance sentence must be tied to the factors

set forth in § 3553(a) and must be accompanied by findings of fact as

necessary. See Green, 2006 WL 267217, at *4-*5. The district court

need not discuss each factor set forth in § 3553(a) "in checklist fashion"; "it is enough to calculate the range accurately and explain why

10 UNITED STATES v. MORELAND
(if the sentence lies outside it) this defendant deserves more or less."

United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (internal

quotation marks omitted). 

We note that the continuing validity of departures in post-Booker

federal sentencing proceedings has been a subject of dispute among

the circuits. Compare United States v. McBride, 2006 WL 89159, at

*4 (6th Cir. Jan. 17, 2006) (stating that consideration of a departure

is part of calculating the correct guideline range), with United States

v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006) (holding that district

courts must decide whether a "traditional departure" is appropriate

after calculating the guideline range and before deciding whether to

impose a variance sentence (internal quotation marks omitted)), and

with United States v. Vaughn, 2006 WL 29208, at *5 (7th Cir. Jan.

6, 2006) ("[T]he concept of a discretionary departure . . . has been

rendered obsolete in the post-Booker world." (internal quotation

marks omitted)). We believe, however, that so-called "traditional

departures"—i.e., those made pursuant to specific guideline provisions or case law4—remain an important part of sentencing even after

Booker.

5

Our task in reviewing a post-Booker federal sentence is to determine whether the sentence is "within the statutorily prescribed range

and is reasonable." Hughes, 401 F.3d at 547 (citations omitted).

4A traditional departure based upon case law would include, for example, a departure premised on a previous determination by this court that

a particular circumstance is outside the "heartland" of the applicable

guideline. See U.S.S.G. § 1A1.1, ed. note 4(b); United States v. Barber,

119 F.3d 276, 280-81 (4th Cir. 1997). 

5Although we are certain that departures continue to be relevant to

post-Booker federal sentencing proceedings, we are less certain that the

district court must continue to provide notice of an intent to depart "on

a ground not identified for departure either in the presentence report or

in a party’s prehearing submission." Fed. R. Crim. P. 32(h); see Hawk

Wing, 433 F.3d at 633 (Loken, Chief Judge, concurring) (arguing that a

"notice error" is harmless "because, after Booker, every defendant is

aware that the [district] court may sentence outside the guidelines range

based on the § 3553(a) factors"). This issue remains to be resolved in an

appropriate case. 

UNITED STATES v. MORELAND 11
Although this standard clearly requires us to afford a degree of deference to the sentencing decisions of the district court, "reasonableness"

is not a code-word for "rubber stamp." Our task is a "complex and

nuanced" one, Green, 2006 WL 267217, at *5, requiring us to consider the extent to which the sentence imposed by the district court

comports with the various, and sometimes competing, goals of

§ 3553(a).

The reasonableness of a sentence ultimately will turn on the particular factors of each case. Nevertheless, certain principles would

appear to be universally applicable. As always, we review legal questions, including the interpretation of the guidelines, de novo, while

factual findings are reviewed for clear error. See United States v.

Caplinger, 339 F.3d 226, 233 (4th Cir. 2003). "An error of law," such

as incorrectly identifying the applicable guideline range, "can render

a sentence unreasonable," as can an error of fact. Green, 2006 WL

267217, at *5. 

A sentence that falls within the properly calculated advisory guideline range is entitled to a rebuttable presumption of reasonableness.

See, e.g., United States v. Mykytiuk, 415 F.3d 606, 607-08 (7th Cir.

2005). This does not mean, however, that a variance sentence is presumptively unreasonable. Such a ruling would transform an "effectively advisory" system, Booker, 125 S. Ct. at 757, into an effectively

mandatory one. Rather, in reviewing a variance sentence, this court

must consider—in light of the factors enumerated in § 3553(a) and

any relevant guideline provisions—whether the district court acted

reasonably with respect to (1) the imposition of a variance sentence,

and (2) the extent of the variance. See id. at 765-66; United States v.

Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005); cf. United States v.

Hairston, 96 F.3d 102, 106-07 (4th Cir. 1996) (noting that both the

decision to depart and the extent of departure are subject to review for

abuse of discretion). 

Reasonableness review involves both procedural and substantive

components. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.

2005), cert. denied, 74 U.S.L.W. 3393 (U.S. Jan. 9, 2006) (No. 05-

7953). A sentence may be procedurally unreasonable, for example, if

the district court provides an inadequate statement of reasons or fails

to make a necessary factual finding. A sentence may be substantively

12 UNITED STATES v. MORELAND
unreasonable if the court relies on an improper factor or rejects policies articulated by Congress or the Sentencing Commission. See

Green, 2006 WL 267217, at *5; see also United States v. Clark, 2006

WL 60273, at *3 (4th Cir. Jan. 12, 2006) (holding sentence unreasonable insofar as the district court rested the sentence on a misapplication of § 3553(a)(6)). 

Generally, if the reasons justifying the variance are tied to

§ 3553(a) and are plausible, the sentence will be deemed reasonable.

However, when the variance is a substantial one—such as the twothirds reduction from the bottom of the advisory guideline range that

is at issue here—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. See Dean, 414 F.3d at

729; accord United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.

2005) (holding, in the context of a downward departure for substantial

assistance to the government, that "[a]n extraordinary reduction must

be supported by extraordinary circumstances"). 

B.

We now recount the manner in which the district court sentenced

Moreland. As it was required to do, the district court first correctly

identified the applicable guideline range. The court determined that

Moreland had previously been convicted of two felony controlled

substance offenses: in 1992, for delivering a marijuana cigarette to a

prison inmate; and in 1996, for possessing with the intent to deliver

6.92 grams of cocaine base. In light of these prior offenses, Moreland’s age, and the nature of the offenses of conviction, the guidelines, pursuant to congressional direction, indicated that Moreland

should be sentenced as a career offender. See U.S.S.G. § 4B1.1(a); 28

U.S.C.A. § 994(h) (West 1993 & Supp. 2005). Because the maximum

statutory penalty was life imprisonment, see 21 U.S.C.A.

§ 841(b)(1)(B) (West 1999 & Supp. 2005), the career offender guideline provided for a base offense level of 37, see U.S.S.G.

§ 4B1.1(b)(A). This offense level, combined with the guidelinedictated Criminal History Category of VI, see id. § 4B1.1(b), produced a guideline range of 360 months to life imprisonment. The district court determined (incorrectly, as explained infra note 9) that

UNITED STATES v. MORELAND 13
without application of § 4B1.1, Moreland’s guideline range would

have been 78-97 months. 

The district court then turned to consideration of the factors set

forth in § 3553(a).6 Looking first at "the nature and circumstances of

the offense and the history and characteristics of the defendant," 18

U.S.C.A. § 3553(a)(1), the court noted that the offense involved a relatively small amount of cocaine base, was nonviolent, and did not

involve a firearm. In the same vein, the court observed that neither of

Moreland’s prior offenses had involved violence or firearms. The

court further concluded that Moreland "has the ability and potential

to become a productive member of society," Moreland, 366 F. Supp.

2d at 420, based on Moreland’s completion of high school and some

college and his employment history. 

The district court next considered the factors set forth in

18 U.S.C.A. § 3553(a)(2). In particular, the district court indicated

that it was troubled by the notion of sentencing Moreland as a career

offender, noting that the career offender guideline "cast[s] a wide

net," putting "Moreland’s distribution of a single marijuana cigarette

on par with a kingpin in a drug conspiracy who is convicted of distributing kilos of drugs or a violent offender who uses firearms or

threats of harm to commit his crimes." Id. at 421. The court then concluded that Moreland’s current and prior offenses "hardly constitute

the type and pattern of offenses that would indicate that Mr. Moreland

has made a career out of drug trafficking." Id.

Based on this analysis, the district court concluded that a variance

sentence was warranted because it was not appropriate to sentence

6The district court did not explicitly consider the possibility of a departure under U.S.S.G. § 4A1.3(b)(1), p.s. (allowing for a downward departure "[i]f reliable information indicates that the defendant’s criminal

history category substantially over-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will

commit other crimes"). We do not fault it for not doing so, however. At

the time of Moreland’s sentencing, the only direction from this circuit

regarding post-Booker sentencing was Hughes, which did not mention

departures. In any event, as discussed infra note 8, such a departure

would have been improper. 

14 UNITED STATES v. MORELAND
Moreland as a career offender. Rather, the court concluded that the

statutory mandatory minimum sentence of ten years—20 years, or

two-thirds, less than the bottom of the advisory guideline range—was

sufficient to achieve the goals set forth in § 3553(a)(2). This sentence,

the court stated, was "well above" the non-career offender guideline

range and thus accounted for Moreland’s previous convictions; the

court additionally viewed the sentence as being long enough to deter

Moreland from committing future crimes, but short enough to give

Moreland "an excellent chance of turning his life around" after prison.

Id. at 420, 422. Finally, the district court reasoned that a sentence of

ten years would not produce an unwarranted sentencing disparity, see

18 U.S.C.A. § 3553(a)(6); in the view of the district court, a lower

sentence than that given to other career offenders was appropriate

under the circumstances. See Moreland, 366 F. Supp. 2d at 422-24.

C.

1.

In assessing the sentence imposed by the district court, we begin

with the question of whether the court acted reasonably in deciding

to impose a variance sentence. We conclude that this decision was a

reasonable one. 

Congress directed the Sentencing Commission to "assure that the

guidelines specify a sentence to a term of imprisonment at or near the

maximum term authorized" for offenders who repeatedly commit felonies involving drugs or violence. 28 U.S.C.A. § 994(h). This directive evinces Congress’ view that certain repeat offenders should

receive markedly longer sentences than other repeat offenders or

those with little or no criminal history. Accord 28 U.S.C.A. § 994(i)

(West 1993 & Supp. 2005) (directing the Commission to "assure that

the guidelines specify a sentence to a substantial term of imprisonment" for certain categories of offenders). The Sentencing Commission has recognized, however, that a defendant’s record of prior

convictions may increase his sentence disproportionately to the severity of his prior crimes. See U.S.S.G. § 4A1.3(b), p.s.

We agree with the district court that a variance was warranted here.7

7

Indeed, the Government conceded as much at oral argument. The

Government’s challenge to the sentence is not to the fact of the variance,

but to its extent. 

UNITED STATES v. MORELAND 15
Application of the career offender guideline is "fraught with potential

imprecision." United States v. Adkins, 937 F.2d 947, 952 (4th Cir.

1991). The career offender guideline covers a broad range of offenders, encompassing the street-level dealer who handles only small

quantities of drugs and the drug kingpin or the recidivist with a history of violence. The district court here determined that sentencing

Moreland as a career offender would not comport with the goals of

§ 3553(a), and we cannot reject this conclusion as unreasonable. As

the district court noted, Moreland’s prior offenses involved small

quantities of drugs and no firearms or violence.8

2.

The second question we must address is whether the extent of the

variance was reasonable. For the reasons set forth below, we conclude

that the district court committed "a clear error of judgment by arriving

at a sentence outside the limited range of choice dictated by the facts

of the case." Hawk Wing, 433 F.3d at 631 (internal quotation marks

omitted). 

We note at the outset that the problem does not lie in the manner

in which the district court set forth its reasoning concerning the sentence imposed—in other words, the sentence is reasonable in a procedural sense. Indeed, the careful consideration of the pertinent

§ 3553(a) factors by the district court was exemplary. However, the

circumstances of this case are not so compelling as to warrant the substantial variance imposed by the district court. 

8This holding is not inconsistent with our pre-Booker holdings regarding departures from a career offender guideline range. See United States

v. Pearce, 191 F.3d 488, 498 (4th Cir. 1999) ("[W]e cannot conceive of

any drug felony that would be considered minor" for purposes of departing from a career offender guideline range.); United States v. Brown, 23

F.3d 839, 841-42 (4th Cir. 1994) (holding that downward departure from

career offender guideline range was not justified by small amount of

drugs involved in prior offense). Were we reviewing a departure under

the previous, mandatory system, these precedents would compel us to

reverse. However, what we are reviewing here is an exercise of discretion by the district court to impose a sentence under § 3553(a). Previous

rulings concerning departures under the now-defunct § 3553(b)(1) may

inform our analysis of such a sentence, but they cannot control it. 

16 UNITED STATES v. MORELAND
The district court based the variance sentence on three circumstances: (1) the relatively small quantity of drugs involved in Moreland’s current and prior offenses; (2) the absence of firearms or

violence from the offenses; and, to a lesser extent, (3) its perception

of Moreland as a person with "the ability and potential to become a

productive member of society." Moreland, 366 F. Supp. 2d at 420.

With respect to the first two items in particular, the district court concluded that Moreland was not the type of person Congress intended

to target as a career offender.

To the extent that the sentence imposed by the district court rests

on a rejection of congressional policy with respect to repeat drug

offenders, it is subject to reversal on that basis alone. Because it

appears that the district court did attempt to reconcile congressional

policy with the circumstances of this case, however, we will not

assume that an outright rejection occurred. See Moreland, 366 F.

Supp. 2d at 420 (asserting that a sentence of ten years "takes into

account the fact that the present offense is not his first conviction").

We therefore must consider whether the circumstances of this case are

so compelling as to warrant the maximum possible downward variance, i.e., the imposition of the statutory mandatory minimum sentence. 

In a word, they are not. Based on the record before us, Moreland

appears to be a small-time drug dealer. He is, nevertheless, a repeat

drug offender who appears to have come to West Virginia for the sole

purpose of selling cocaine base.9 Additionally, Moreland’s desultory

9

In this vein, we note that we are not persuaded that sentencing Moreland to the statutory mandatory minimum sentence will provide "just

punishment" for the offense. 18 U.S.C.A. § 3553(a)(2)(A). There is no

question that ten years is "a very substantial amount of time to spend in

prison." Moreland, 366 F. Supp. 2d at 420. It is also, however, the same

sentence Moreland would have received if he had had only one prior

conviction. The sentence imposed by the district court thus does not truly

account for Congress’ judgment that those who repeatedly commit drug

felonies should be severely punished for their actions. 

Further, it was incorrect for the district court to compare the statutory

mandatory minimum sentence of ten years to the guideline range of 78

to 97 months imprisonment that it calculated would have applied to

UNITED STATES v. MORELAND 17
pursuit of his education and his spotty employment history—six jobs

over the course of seven years, with his last legitimate employment

in 1999—can provide little confidence in his willingness to become

a productive member of society, irrespective of his ability to do so.

If Moreland’s circumstances are so compelling as to warrant a twothirds reduction from the bottom of the advisory guideline range, it

is difficult to imagine any meaningful limit on the discretion of the

district court.10 But cf. United States v. Williams, 2006 WL 68559, at

*4-*5 (11th Cir. Jan. 13, 2006) (per curiam) (affirming, as reasonable,

52 percent downward variance from career offender guideline range

based on the assessment of the district court that the advisory guideline range of 188 to 235 months imprisonment was disproportionate

to the offense of selling $350 worth of cocaine base).

We therefore vacate the sentence and remand for the imposition of

a sentence of no less than 20 years imprisonment. 

IV.

For the reasons set forth above, we affirm Moreland’s convictions.

We vacate his sentence and remand for resentencing. 

AFFIRMED IN PART;

VACATED AND REMANDED IN PART

Moreland had he not qualified for career offender status. See id. Once the

Government established that Moreland had been convicted of one prior

drug felony, he became subject to a statutory mandatory minimum term

of ten years imprisonment. See 21 U.S.C.A. § 841(b)(1)(B). Moreland’s

guideline range had he not been a career offender, therefore, would have

been ten years. See U.S.S.G. § 5G1.1(b) ("Where a statutorily required

minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence."). 

10For an example of truly compelling circumstances justifying the

imposition of a sentence nearly twice the maximum of the advisory

guideline range, see United States v. Jordan, 2006 WL 73406, at *4-*6

(7th Cir. Jan. 13, 2006). 

18 UNITED STATES v. MORELAND