Court Finds Above-the-Guidelines Sentence Unreasonble; Notice Required Before Court Varies

US v. Davenport: Davenport pleaded guilty to fraudulent use of an access device after swiping a credit card from a woman while boarding a shuttle bus at Baltimore-Washington International Airport. He made one fraudulent purchase and was caught, along with three other guys. The conduct occurred pre-Booker.

The calculations in the PSR produced an advisory sentencing range of 30 to 37 months at his post-Booker sentencing hearing. Davenport argued for a 24-month sentence because of his limited role in the offense. By contrast, the Government argued for a Guideline sentence because Davenport was actually the leader of a "nationwide pickpocket ring" that travelled the country's major events looking for victims (they were in Baltimore for the Preakness Stakes).

The district court disagreed with Davenport's characterization of his role and sentenced him to 120 months in prison. Davenport was also ordered to pay $8738.76 in restitution to various financial institutions and persons whose credit cards had been taken.

On appeal, the Fourth Circuit vacated. Initially, the court rejected Davenport's argument that the ex post facto clause prevented the district court from imposing a sentence greater than 37 months. However, the court concluded that the 120-month sentence was wrongly imposed, for two reasons.

First, the district court imposed a the above the Guidelines sentence without providing notice of its intent to do so. The notice requirement survives Booker and is still a "critical part" of sentencing. However, the court did not determine whether the lack of notice actually prejudiced Davenport, because it vacated the sentence on another ground.

The other ground was that the 120-month sentence was unreasonable. In a mirror image of Moreland, the court concluded that an upward departure/variance was proper, but that the 120-month sentence was too great an increase. Therefore, the court vacated Davenport's sentence.

The court also vacated Davenport's order of restitution, holding that the district court failed to make adequate factual findings to support the order. The court also held that the district court erred by labeling the persons whose cards had been stolen as "victims," as the term in this case could apply only to the credit card companies liable for the fraudulent charges (which, the court pointed out, amounted to only $58.85 on the current record).