UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4497

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMETRIUS TERRY MEARES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at New Bern. Terrence W. Boyle,

District Judge. (7:06-cr-00108-BO)

Submitted: July 17, 2008 Decided: August 14, 2008

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E. B. Holding, United States Attorney, Anne M.

Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Demetrius Terry Meares pled guilty pursuant to a written

plea agreement to armed bank robbery (“Count One”) and brandishing

a firearm during and in relation to a crime of violence (“Count

Two”), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii); 2113(a), (d)

(2000). Meares was sentenced to a total of 300 months’

imprisonment. He challenges this sentence on appeal.

As to the armed bank robbery offense charged in Count

One, the Presentence Investigation Report recommended an adjusted

offense level of twenty and a criminal history category of V,

thereby resulting in an advisory guideline range of 63 to 78

months’ imprisonment. See U.S. Sentencing Guidelines Manual Ch. 5,

Pt. A (2006) (sentencing table). As to the firearms offense

charged in Count Two, Meares’s advisory guideline sentence was the

minimum term of imprisonment required by statute, or eighty-four

months. See USSG § 2K2.4(b) (2006); see also 18 U.S.C.

§ 924(c)(1)(A)(ii).

Meares agreed with the contents of the presentence

report, including the details surrounding a second armed bank

robbery that was charged in Count Three, but dismissed pursuant to

the terms of the plea agreement. The district court, however,

determined that an additional two-level increase was warranted

under USSG § 3A1.1 (2006) (vulnerable victim enhancement) because

Meares took a woman in her fifties hostage during the second armed
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bank robbery. Meares’s counsel argued against the enhancement,

stating the purpose of § 3A1.1 was to punish offenders who

intentionally chose victims based on an immutable characteristic,

such as race. The court disagreed with counsel’s argument, and

applied the enhancement. Consequently, the advisory guideline

range for Count One, based on an adjusted offense level of twentytwo and a criminal history category of V, was 77 to 96 months.

Because the facts surrounding the robberies were

egregious, the court determined that a sentence above the advisory

guideline range was warranted. Pursuant to USSG § 5K2.21 (2006),

the court calculated an upward departure range based on the facts

surrounding the dismissed count, including the fact that the second

armed bank robbery involved a “vulnerable victim.” Since the court

concluded that the departure guideline range was still “inadequate

to accurately reflect the planning and consummation of these

crimes,” it imposed a variance sentence totaling 300 months’

imprisonment, which included 180 months on Count One and a

consecutive term of 120 months on Count Two.

Meares challenges the district court’s application of the

Sentencing Guidelines on appeal. He specifically argues that the

court impermissibly double counted the conduct in the dismissed

count by using it as the basis for application of a vulnerable

victim enhancement during its determination of the advisory

guideline range as well as for an upward departure under § 5K2.21.
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The Government concedes that the district court impermissibly

double counted. Additionally, the Government notes that the

court’s application of the vulnerable victim enhancement in

calculating the advisory guideline range was likewise erroneous as

it was based on conduct unrelated to the crimes for which Meares

pled guilty.

When determining a sentence, the district court must

calculate the appropriate advisory guideline range and consider it

in conjunction with the factors set forth in 18 U.S.C. § 3553(a)

(2000). Gall v. United States, 128 S. Ct. 586, 596 (2007). In

reviewing the district court’s application of the Sentencing

Guidelines, we review findings of fact for clear error and

questions of law de novo. United States v. Green, 436 F.3d 449,

456 (4th Cir. 2006). Appellate review of a district court’s

imposition of a sentence, “whether inside, just outside, or

significantly outside the Guidelines range,” is for abuse of

discretion. Gall, 128 S. Ct. at 591. 

“Double counting occurs when a provision of the

Guidelines is applied to increase punishment on the basis of a

consideration that had been accounted for by application of another

Guideline provision or by application of a statute.” United

States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004). Unless

expressly prohibited by the Guidelines, double counting is

permitted. Id. Such is the case in § 5K2.21, which recognizes
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that a court may “depart upward to reflect the actual seriousness

of the offense based on conduct . . . underlying a charge dismissed

as part of a plea agreement,” but requires that the conduct at

issue may not have “enter[ed] into the determination of the

applicable guideline range.” USSG § 5K2.21.

The district court indisputably used the dismissed

conduct in Count Three to both calculate the advisory guideline

range and depart upward under § 5K2.21. As this form of double

counting is expressly prohibited by § 5K2.21, the court’s

application of the Guidelines was erroneous. Moreover, as

commendably noted by the Government, the court’s application of the

vulnerable victim enhancement in initially determining Meares’s

advisory guideline range was likewise erroneous as the conduct

underlying the enhancement was unrelated to the charges for which

Meares pled guilty. Consequently, Meares’s sentence, which is the

result of significant procedural error, is unreasonable. See

United States v. Evans, 526 F.3d 155, 160-62, 164 (4th Cir. 2008).

We therefore vacate Meares’s sentence and remand for resentencing.

On remand, the district court should first determine the

appropriate sentencing range under the Guidelines, making all

factual findings appropriate for the determination. Id. at 160-61.

The court should consider this sentencing range along with the

other factors described in 18 U.S.C. § 3553(a) and then impose a

sentence. Id. at 161. If that sentence falls outside the
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Guidelines range, the court should articulate its reasons for the

departure or variance with respect to each count. Id. We, of

course, indicate no view as to the appropriate sentence to be

imposed upon Meares, leaving that determination, in the first

instance, to the district court.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

VACATED AND REMANDED