UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4589

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY BERNARD DILLON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. William D. Quarles, Jr., District Judge.

(CR-04-456)

Submitted: September 26, 2007 Decided: October 17, 2007

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Randolph O. Gregory, Sr., LAW OFFICES OF RANDOLPH O. GREGORY, SR.,

Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United

States Attorney, Andrew G. W. Norman, Assistant United States

Attorney, Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Anthony Bernard Dillon pled guilty to credit card fraud

in violation of 18 U.S.C. § 1029 (2000). Dillon appeals his

sentence, arguing that the district court erred in departing

without prior notice, and in departing upward by ten levels without

following the approved procedure for a departure pursuant to U.S.

Sentencing Guidelines Manual § 4A1.3, p.s. (2004), or for a

departure above criminal history category VI. We agree that

resentencing is required.

With twenty criminal history points, Dillon was in

criminal history category VI. Although the probation officer did

not suggest any grounds for departure in the presentence report and

the government requested a sentence within the guideline range, at

the sentencing hearing the district court decided that Dillon’s

criminal record warranted a higher sentence. The court noted

Dillon’s twenty-three convictions in seven states over more than

twenty years, for which he had received many lenient sentences,

each for a relatively small crime. The court made the assumption

that no judge had been able to consider any of these crimes in the

proper context. The court noted further that Dillon was on parole

from a prior robbery conviction when he committed the instant

offense. The district court departed upward from offense level 12

to level 21, increasing the advisory guideline range from 30-37
*

The orally pronounced sentence was eighty-seven months.

While the judgment order states that the sentence is eighty-four

months, the orally pronounced sentence controls. United States v.

Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003) (citing United

States v. Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965)); see also

Rakes v. United States, 309 F.2d 686, 687-88 (4th Cir. 1962).

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months to 84-105 months, and imposed a sentence of eighty-seven

months imprisonment.*

Following United States v. Booker, 543 U.S. 220 (2005),

we review a sentence for reasonableness. United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). When the

court departs from the advisory guideline range post-Booker, the

defendant is, as before, entitled to notice of the court’s

intention before sentencing. United States v. Davenport, 445 F.3d

366, 371 (4th Cir. 2006). However, a failure to provide notice is

not always prejudicial error. Id.

Because Dillon did not object in the district court to

the lack of notice, the issue is reviewed for plain error. United

States v. Olano, 507 U.S. 725, 731-32 (1993); United States

v. McClung, 483 F.3d 273, 276 (4th Cir. 2007), petition for cert.

filed, ___ U.S.L.W. ___ (U.S. July 12, 2007) (No. 07-5347). Under

the plain error test, the defendant must show that (1) error

occurred; (2) the error was plain; and (3) the error affected his

substantial rights. Olano, 507 U.S. at 732. Even when these

conditions are satisfied, this court may exercise its discretion to

notice the error only if the error “seriously affect[s] the
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fairness, integrity or public reputation of judicial proceedings.”

Id. (internal quotation marks omitted). Here, as in McClung and

Davenport, plain error occurred because Dillon had no notice of a

possible departure until the court imposed sentence. However, as

in Davenport, we need not decide whether Dillon was prejudiced

because the court erred in making the departure, and resentencing

is required for that reason. See Davenport, 445 F.3d at 371.

When reviewing a departure, we consider “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.” Hernandez-Villanueva, 473

F.3d at 123. A departure pursuant to USSG § 4A1.3 is encouraged

when the criminal history category does not adequately account for

the defendant’s past criminal conduct or the likelihood that he

will commit other crimes. United States v. Dixon, 318 F.3d 585,

588 (4th Cir. 2003). Here, the district court adequately stated

its reasons for departing pursuant to § 4A1.3 and the departure was

based on proper factors. Hernandez-Villanueva, 473 F.3d at 123.

Thus, the district court’s decision to depart was reasonable.

United States v. Dalton, 477 F.3d 195, 198-99 (4th Cir. 2007). 

However, the court departed above category VI without

following the “incremental approach” mandated by § 4A1.3(a)(4)(B)

and our precedent for departures above category VI. Dalton, 477

F.3d at 199; United States v. Cash, 983 F.2d 558, 561 (4th Cir.
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1992); United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992).

The court imposed a sentence more than twice the top of the

advisory guideline range without providing either the incremental

analysis required by § 4A1.3 or the “extensive justification”

required by “dramatic departures.” Dalton, 477 F.3d at 199 (citing

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

court merely stated at the sentencing hearing that it would impose

a seven-year sentence, and said nothing about how it determined the

extent of the departure. 

Accordingly, we vacate the sentence and remand for

resentencing. On remand, the court should explain why category VI

is inadequate, and “move incrementally down the sentencing table to

the next higher offense level until it finds a guideline range

appropriate to the case.” USSG § 4A1.3(a)(4)(B); Dalton, 477 F.3d

at 200 n.3. 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