United States v. Derrick Saffold , 217 F. App'x 874 ( 2007 )


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  •                                                                       [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________  ELEVENTH CIRCUIT
    FEBRUARY 13, 2007
    No. 06-12014                       THOMAS K. KAHN
    ________________________                      CLERK
    D. C. Docket No. 05-00199-CR-A-N
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DERRICK SAFFOLD,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    _________________________
    (February 13, 2007)
    Before CARNES, PRYOR and FARRIS,* Circuit Judges.
    PER CURIAM:
    *
    Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of
    Appeals, sitting by designation.
    One evening while he was under indictment in state court for various
    robbery and theft charges, Derrick Saffold was sitting in a car at a gas station. He
    was in the passenger seat wearing a bullet-proof vest and holding two guns in his
    lap. A police officer who happened to be there spotted Saffold and arrested him.
    Saffold admitted, both to his state probation officer and also while testifying at his
    sentence hearing, that at the time of his arrest he and the driver of the car were on
    their way to participate with a third man in a drive-by shooting. The third man
    was not with them, but as Saffold said during his testimony, “we were fixing to go
    pick him up.” 1
    Saffold pleaded guilty to one count of receiving firearms and ammunition
    1
    In a written statement to his probation officer, Saffold described what happened this
    way:
    Audrey asked me if I was “down” with a drive by, meaning a shooting. I
    said yes. We called Ellis Diggs on the telephone and asked him if he was “down”
    with it. Ellis said he was. We told Ellis that we would leave about 9:00pm on
    05/06/05. We had to go get Ellis, because his car had ran out of gas. Ellis had a
    .40 cal handgun, the big gun. When we got out to put gas in Ellis’s car, Ellis left
    his gun in our car. Ellis told us to give him the gun back when we got to
    Hayneville. When we arrived at the Hayneville BP, at or about 10:00pm, we
    stopped in front of the store and Ellis stopped at the gas pumps. Ellis was
    supposed to get more gas in his car and we were going to take my sister’s car,
    Geo, back to her and Audrey and myself would get in Ellis’s car with him. Police
    officer walked by my car and saw the two guns in my lap with a “vest” on. The
    police officer told me to step out of the car and asked me who the guns belonged
    to. I told him that they were my cousin’s guns. I asked the police to let me take
    the vest off and I attempted to run away. The police caught me, put me in
    handcuffs and took me to jail. This is a true statement.
    2
    which had been shipped in interstate or foreign commerce while under indictment
    for a separate felony, in violation of 18 U.S.C. § 922(n). This is his appeal of the
    resulting 30-month sentence. Saffold raises two issues.
    I.
    Saffold contends that the district court improperly increased his offense
    level under United States Sentencing Guidelines § 2K2.1(b)(5) (Nov. 2005),
    which requires a 4-level increase in the defendant’s offense level if the defendant
    possessed a firearm in connection with a felony offense other than the offense of
    conviction.2 In particular, § 2K2.1(b)(5) conditions the 4-level increase on his
    “use[] or possess[ion] [of] any firearm or ammunition in connection with another
    felony offense” or his “possess[ion] or transfer[] [of] any firearm or ammunition
    with knowledge, intent, or reason to believe that it would be used or possessed in
    connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). The term
    “‘another felony offense’ . . . refer[s] to offenses other than explosives or firearms
    possession or trafficking offenses,” 
    id. cmt. n.15,
    and subject to that limitation,
    “felony offense” includes “any offense (federal, state, or local) punishable by
    imprisonment for a term exceeding one year, whether or not a criminal charge was
    2
    The guideline was re-numbered § 2K2.1(b)(6) in the 2006 guidelines, but no change was
    made in the text.
    3
    brought, or conviction obtained,” 
    id. cmt. n.4.
    Saffold raised the issue of § 2K2.1(b)(5)’s application by timely objection
    during the sentence proceeding. He did so even while conceding that he and
    another individual had indeed planned to carry out a drive-by shooting when they
    got into the car with the firearms on the evening of his arrest. Saffold relied on his
    testimony that he and the driver of the car had altogether abandoned the drive-by
    shooting plans by the time the police saw him at the gas station that night.
    However he articulated his argument to the district court, he argues to us that the §
    2K2.1(b)(5) enhancement does not apply because he was not guilty of the felony
    of attempting or conspiring to commit the planned drive-by shooting; he was not,
    he insists, because he backed out of the conspiracy and abandoned the attempt
    before the shooting happened and before he was arrested in possession of the
    firearms. Under Alabama law, he argues, his conduct amounted to renunciation
    and it means he did not commit a felony in connection with his possession of the
    firearms.
    We are not persuaded by Saffold’s renunciation argument. Even if he did
    tell the truth in his testimony, his conduct is not sufficient under Alabama law to
    render him “not liable” under Ala. Code § 13A-4-3(c) for the felony of conspiring
    to commit the drive-by shooting. The renunciation defense to conspiracy requires
    4
    that one have given “a timely and adequate warning to law enforcement
    authorities or made a substantial effort to prevent the enforcement of the criminal
    conduct contemplated by the conspiracy.” 
    Id. Merely changing
    one’s mind and
    informing a co-conspirator is not enough, especially if one continues to hold the
    firearms and wear a bullet-proof vest while sitting in the car that was to be used in
    the drive-by shooting. The district court did not err in applying the § 2K2.1(b)(5)
    enhancement.
    II.
    Saffold also contends that his 30-month sentence was unreasonable under
    United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
    (2005). We review this
    contention in the context of the factors set out in 18 U.S.C. § 3553(a). See
    
    Booker, 543 U.S. at 261
    , 125 S. Ct. at 766; United States v. Winingear, 
    422 F.3d 1241
    , 1246 (11th Cir. 2005). Those factors include: (1) the nature and
    circumstances of the offense and the history and characteristics of the defendant;
    (2) the need to reflect the seriousness of the offense, to promote respect for the
    law, and to provide just punishment for the offense; (3) the need for deterrence;
    (4) the need to protect the public; (5) the need to provide the defendant with
    educational or vocational training or medical care; (6) the kinds of sentences
    available; (7) the advisory guidelines range; (8) the need to avoid unwanted
    5
    sentencing disparities; and (9) the need to provide restitution to victims. See 18
    U.S.C. § 3553(a). “Review for reasonableness is deferential,” and the party
    challenging a sentence bears the burden of establishing unreasonableness in light
    of the § 3553(a) factors and the record established in the district court. United
    States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005).
    Saffold’s principal argument is that his sentence is unreasonable because the
    district court failed to properly consider his mild mental retardation. On the way
    to determining that Saffold’s guideline range was 24–30 months, the court denied
    his motion for a downward departure for diminished mental capacity under
    U.S.S.G. § 5K2.13. In the course of doing so, the court considered evidence that
    included: (1) a psychometrist’s report dated almost ten years prior to sentencing
    showing that Saffold had a below average IQ and (2) Saffold’s 13-year history of
    receiving disability benefits for mild mental retardation.
    Saffold argues that the transcript of the sentencing hearing is “devoid of any
    meaningful discussion” of Saffold’s mental condition by the district court in
    arriving at its final sentence. His argument seems to be that the district court was
    required to specifically reiterate in its § 3553(a) discussion anything it had said
    earlier in arriving at the guidelines range. We disagree. One discussion is enough.
    We don’t require reiteration.
    6
    In deciding on a sentence that would be reasonable under § 3553(a), the
    district court specifically stated that it had “thought a lot about this case in view of
    the arguments by the defendant as to mental condition.” The court also said that it
    was reaching its decision “considering all of the factors enumerated in 18 U.S.C.,
    Section 3553(a),” which alone is sufficient to satisfy the requirements of Booker.
    See 
    Talley, 431 F.3d at 786
    .
    The court found that a sentence of 30 months, which was the top of the
    applicable guidelines range, was appropriate because: (1) it would deter other
    people under indictment for possessing firearms; (2) Saffold possessed the
    firearms while en route to a drive-by shooting, and then fled after police tried to
    arrest him; and (3) Saffold was on probation at the time of his unlawful firearm
    possession. In view of those considerations and Saffold’s criminal history, 30
    months was, if anything, on the light side of reasonableness.
    AFFIRMED.
    7
    

Document Info

Docket Number: 06-12014

Citation Numbers: 217 F. App'x 874

Judges: Carnes, Farris, Per Curiam, Pryor

Filed Date: 2/13/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023