United States v. Blewitt , 920 F.3d 118 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1356
UNITED STATES OF AMERICA,
Appellee,
v.
SETH J. BLEWITT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Selya, and Boudin,
Circuit Judges.
Leslie W. O'Brien on brief for appellant.
Halsey B. Frank, United States Attorney, and Benjamin M.
Block, Assistant U.S. Attorney, on brief for appellee.
April 5, 2019
SELYA, Circuit Judge. Defendant-appellant Seth J.
Blewitt, who stands convicted of bank robbery, Hobbs Act robbery,
and a related firearms offense, challenges his sentence. He argues
that the sentencing court acted in contravention of the Supreme
Court's opinion in Dean v. United States, 137 S. Ct. 1170, 1178
(2017), and in the bargain, engaged in impermissible gender
stereotyping. Concluding, as we do, that the appellant's arguments
contain more cry than wool, we affirm.
I. BACKGROUND
Since this appeal follows a guilty plea, we draw the
relevant facts mainly from the change-of-plea colloquy, the
presentence investigation report (PSI Report), and the sentencing
transcript. See United States v. Rentas-Muñiz, 887 F.3d 1, 2 (1st
Cir. 2018); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.
1991). But because one of the appellant's claims of sentencing
error is inextricably intertwined with the sentencing of his
accomplice (his then-wife, Cara Blewitt), we add certain
undisputed facts relating to her sentencing.
On May 28, 2017, the appellant, with his physiognomy
obscured by a winter hat and sunglasses, entered a bank in Bangor,
Maine. After telling the teller that he was "actually robbing
[her]," he proceeded to do just that. In carrying out the heist,
he neither threatened the teller nor displayed a weapon.
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Absconding with $500, the appellant joined Cara Blewitt in their
getaway vehicle.
This scene was reprised the next day, when the appellant
robbed a discount variety store. On that occasion, though, the
appellant was armed with a sawed-off shotgun. Cara Blewitt again
drove the getaway car.
Shortly after the second robbery, the police identified
the Blewitts as the robbers. Warrants were issued, and the couple
was arrested during a traffic stop. Several shotgun shells were
found on the appellant's person and in the Blewitts' car. A
further search of the vehicle revealed $300 in cash, a Remington
.22 long rifle, and hundreds of rounds of ammunition. Moreover,
a forensic examination of the appellant's cell phone disclosed
multiple internet searches related to robbery. These included:
"Hard up for cash? Rob a Dollar Store," "How nine out of every
ten muggers get away with it," and "Robbery: What is the best way
to rob a store?"
In due course, a federal grand jury sitting in the
District of Maine returned an indictment against the appellant.
The indictment charged him in three counts: bank robbery in
violation of 18 U.S.C. § 2113(a) (count 1); interference with
commerce by robbery in violation of 18 U.S.C. § 1951 (count 2);
and brandishing a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A) (count 3). The
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appellant initially maintained his innocence but, on November 30,
2017, reversed his field and pleaded guilty to all three counts of
the indictment. There was no plea agreement.
When prepared, the PSI Report recommended a guideline
sentencing range (GSR) for counts 1 and 2, as a group, of 37 to 46
months. By statute, count 3 required a mandatory minimum sentence
of 84 months to run consecutively to any sentence imposed on the
grouped counts (counts 1 and 2). See 18 U.S.C. § 924(c)(1)(A)(ii).
Cara Blewitt was prosecuted separately and the case
against her followed a somewhat different course. She admitted
her involvement in the robberies shortly after her arrest, waived
indictment, and was charged in an information. While the
information charged her with the same two robbery offenses with
which her then-husband was charged, it did not charge her with a
firearms offense. She pleaded guilty to both counts of the
information.
Cara Blewitt's sentencing hearing was held on March 26,
2018. The district court expressed concern about the potential
disparity in the sentences that she and the appellant faced. The
court questioned why the government had chosen not to bring
identical charges against both spouses, suggesting that the
government's charging decisions had been influenced by assumptions
about the gender roles of the defendants. The government responded
that it did not believe it had sufficient evidence to charge Cara
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Blewitt with the firearms offense. The court was not satisfied:
it noted that the probation department had recommended a minor
role reduction for Cara Blewitt, see USSG §3B1.2(b), and wondered
why the government had not opposed that reduction, again suggesting
that the government's decision was premised on gender
stereotyping. The government rejoined that Cara Blewitt was less
culpable than the other participant. Despite its reservations,
the court followed the probation department's recommendations,
calculated Cara Blewitt's GSR to be 46 to 57 months,1 and sentenced
her to a downwardly variant 33-month term of immurement.
The district court convened the appellant's sentencing
hearing approximately two weeks after Cara Blewitt's sentencing.
The court adopted the guideline calculations limned in the PSI
Report and set the appellant's GSR for the grouped counts at 37 to
46 months. It then remarked the 84-month consecutive sentence
mandated with respect to the firearms count. After again voicing
its concern with the disparity between Cara Blewitt's recently
imposed sentence and the appellant's prospective sentence, the
court suggested that "typical gender roles" may have influenced
the government's charging decisions. The court went on to sentence
the appellant to a downwardly variant 24-month term of immurement
1
As calculated, Cara Blewitt's GSR for the grouped counts
exceeded the appellant's GSR for those counts. The reasons for
this discrepancy are not relevant here and, in all events, no one
has questioned any of the district court's guideline calculations.
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on the grouped counts, followed by a consecutive 84-month term of
immurement on the firearms count — a total of 108 months of
incarceration. This timely appeal ensued.
II. ANALYSIS
In this venue, the appellant advances two claims of
error. First, he submits that the district court committed
procedural error in failing to appreciate that it had discretion
to consider the mandatory sentence on the firearms count when
formulating the sentence for the grouped counts. Second, he
submits that the district court impermissibly engaged in gender
stereotyping when formulating his sentence and, thus, transgressed
his constitutional right to equal protection. We examine these
claims separately.
A. The Asserted Dean Error.
The appellant's first claim of error hinges on his
allegation that the district court determined his sentence on the
grouped counts based on a "mistaken belief" that it could not take
into account the mandatory minimum sentence that it would have to
impose on the firearms count. This is a claim of procedural error,
and we review claims of procedural error in sentencing appeals for
abuse of discretion.2 See Gall v. United States, 552 U.S. 38, 46
2 Although the record reflects some basis for questioning
whether this claim of error was properly preserved, the government
has adopted the position that our review is for abuse of
discretion. We take this concession at face value and apply the
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(2007); United States v. Torres, 541 F.3d 48, 51 (1st Cir. 2008).
"Within this rubric, we assay the district court's factfinding for
clear error and afford de novo consideration to its interpretation
and application of the sentencing guidelines." United States v.
Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
The appellant rests this procedural challenge on a
single statement of the sentencing court: "Congress has mandated
that after I calculate the underlying sentence, I must impose an
84-month sentence if someone goes and brandishes a gun." This
remark, the appellant says, is a telltale sign that the court
committed the same procedural error that the Supreme Court
condemned in Dean. We do not agree.
Dean, like this case, involved a sentencing proceeding
at which the defendant was to be sentenced both for predicate
offenses that carried no mandatory minimum and for firearms
offenses that each carried a mandatory minimum. There, as here,
the mandatory minimum sentence had to be imposed to run
consecutively to the predicate-offense sentence. See Dean, 137 S.
Ct. at 1174-75. The defendant asked the sentencing court to take
his mandatory sentence into account when fashioning his sentence
abuse-of-discretion standard. See United States v. Encarnación-
Ruiz, 787 F.3d 581, 586 (1st Cir. 2015) ("When the government fails
to request plain error review, we, and many of our sister circuits,
review the claim under the standard of review that is applied when
the issue is properly preserved below.").
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on the predicate-offense counts and to impose a one-day sentence
on those counts. See id. at 1175. The district court responded
that even though the mandatory minimum sentence plus one day would
be "more than sufficient," it did not think that it could sentence
the defendant to one day for the predicate offenses simply because
the defendant was subject to a lengthy mandatory minimum sentence
for the firearms offenses. Id. The Eighth Circuit affirmed the
resulting sentence. See United States v. Dean, 810 F.3d 521, 533
(8th Cir. 2015).
The Supreme Court granted certiorari and vacated the
defendant's sentence, emphasizing that "[s]entencing courts have
long enjoyed discretion in the sort of information they may
consider when setting an appropriate sentence." Dean, 137 S. Ct.
at 1175. Given the breadth of this discretion, the Court concluded
that nothing in section 924(c) should be read to "restrict[] the
authority conferred on sentencing courts . . . to consider a
sentence imposed under § 924(c) when calculating a just sentence
for the predicate count." Id. at 1176-77. It follows that for a
sentencing court to engage in the conduct condemned in Dean, it
must have "erroneously believed it had to 'ignore the fact that
the defendant will serve the mandatory minimum[] imposed' under
section 924(c) when calculating a just sentence" for other
offenses. United States v. Vallellanes-Rosa, 904 F.3d 125, 128
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(1st Cir. 2018) (alteration in original) (quoting Dean, 137 S. Ct.
at 1174).
The statement identified by the appellant — "Congress
has mandated that after I calculate the underlying sentence, I
must impose an 84-month sentence if someone goes and brandishes a
gun" — is merely a statement of fact. It says what it means and
means what it says. It does not show, by any stretch of even the
most lively imagination, that the court below labored under any
misapprehension when sentencing the appellant on the grouped
counts.3 This conclusion is bolstered by the fact that nothing in
the sentencing transcript offers the slightest indication that the
district court either was unaware of Dean or believed that it could
not consider the mandatory minimum sentence for the firearms count
when determining the sentence for the grouped counts. Indeed, the
holding in Dean could hardly have escaped the district court's
notice: a discussion of that holding was featured prominently in
the PSI Report and the decision in Dean was highlighted by the
government at sentencing. To cinch the matter, the court below —
unlike the sentencing court in Dean — gave no hint that it wished
3 The most logical interpretation of the district court's
reference to calculating the underlying sentence is as an
acknowledgment that the court was following the usual praxis with
respect to the grouped counts, calculating the GSR and then
applying the sentencing factors delineated in 18 U.S.C. § 3553(a).
See, e.g., Peugh v. United States, 569 U.S. 530, 536 (2013); Gall,
552 U.S. at 49-50; Rita v. United States, 551 U.S. 338, 347-48
(2007).
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to limit the appellant's total sentence to something near the
mandatory minimum sentence but thought it could not do so.
That ends this aspect of the matter. In the absence of
anything resembling a Dean error, we reject the appellant's first
claim of error.
B. The Gender Stereotyping Claim.
This brings us to the appellant's claim that the
sentencing court violated his right to equal protection by
impermissibly considering his gender. Because the appellant did
not raise this claim of error below, our review is limited to plain
error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). Plain error is a formidable standard of review, which
requires that an appellant demonstrate: "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Id.
Inasmuch as the appellant challenges an action by the
federal government, his right to equal protection is grounded in
the Due Process Clause of the Fifth Amendment. See U.S. Const.
amend. V; see also González-Maldonado v. MMM Healthcare, Inc., 693
F.3d 244, 247 n.2 (1st Cir. 2012) (explaining that "the Due Process
Clause of the Fifth Amendment is treated as containing an equal
protection component that binds the federal government in the same
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way that the Equal Protection Clause [of the Fourteenth Amendment]
binds the states"). Our "approach to Fifth Amendment equal
protection claims has always been precisely the same as to equal
protection claims under the Fourteenth Amendment." Carrasco v.
Sec'y of HEW, 628 F.2d 624, 628 n.5 (1st Cir. 1980) (quoting
Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). Refined
to bare essence, the Constitution's guarantee of equal protection
"mean[s] that 'all persons similarly situated should be treated
alike.'" Pagán v. Calderón, 448 F.3d 16, 34 (1st Cir. 2006)
(quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.
432, 439 (1985)).
Here, the appellant argues that due to his gender, the
district court treated him more harshly than his similarly situated
accomplice when calculating their respective sentences.
Specifically, he points to the court's comment that, "one of the
factors that troubles me about the case is that the roles in the
robbery . . . are generally consistent with typical gender roles."
The court added that, "[i]t's an unusual male who is going to push
his girlfriend or wife out of a car and say, you go in and rob a
store or bank. The more typical situation would be that the male
would go in and the female would play the role of get-away driver."
From these remarks, the appellant surmises that the court
impermissibly considered his gender as a factor in the sentencing
calculus.
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In mounting this claim, the appellant relies primarily
on United States v. Maples, 501 F.2d 985 (4th Cir. 1974). Maples,
however, is a horse of an entirely different hue. There, a man
and a woman entered a bank and perpetrated an armed robbery. They
pleaded guilty to identical charges. See id. at 985-86. The trial
judge sentenced the man to serve fifteen years and the woman to
serve ten years, after stating (with respect to the woman's
sentence): "I just don't believe in punishing women who
participated in a crime with the men on the same basis as a man.
. . . [B]ecause of your age and the fact that you are a woman, the
Court will not incarcerate you for quite as long as I did your co-
defendant." Id. at 986. The male defendant appealed, and the
Fourth Circuit vacated his sentence. See id. at 987. The court
explained that "[i]t is manifest from the statement of the district
judge, in sentencing [the female defendant], that at least a part
of the leniency shown her vis-a-vis her codefendants, was the fact
that she was a woman." Id. The court concluded that "the factor
of sex [is] an impermissible one to justify a disparity in
sentences." Id.
We have no quarrel with the decision in Maples. Here,
by contrast, the appellant and Cara Blewitt were not similarly
situated. Most notably, the appellant was convicted of a firearms
offense (a violation of 18 U.S.C. § 924(c)), resulting in an 84-
month mandatory minimum sentence. Cara Blewitt was not charged
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with any such crime. In addition, Cara Blewitt qualified for a
mitigating role adjustment (as a minor participant in the second
robbery), while the appellant never even requested such an
adjustment.
We add, moreover, that the district court at no time
indicated an intent to sentence one defendant more harshly or more
leniently based on gender. To the contrary, the record makes
manifest that the court was concerned about the looming disparity
between the two participants' sentences and was openly critical of
the government's charging decisions. In the end, the court
attempted to make the sentences more equal, giving the appellant
a sentence that was 13 months below the bottom of his GSR precisely
because of concerns about disparity. The court added that if the
appellant had been acting alone and disparity had not been a
concern, it would not have hesitated to impose a stiffer sentence.
The sentencing court's use of a downward variance to
mitigate perceived disparity was well within its discretion. After
all, avoiding unwarranted disparities in sentencing among
similarly situated defendants is "a salient consideration in the
fashioning of a criminal sentence." United States v. Nuñez, 840
F.3d 1, 7 (1st Cir. 2016).
To say more would be to paint the lily. The appellant
has failed to make a plausible showing of any violation of his
right to equal protection, and plain error is plainly absent.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
the appellant's sentence is
Affirmed.
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