United States v. Cade ( 2019 )

FILED
UNITED STATES COURT OF APPEALS United States Court of Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________ April 2, 2019
Elisabeth A. Shumaker
UNITED STATES OF AMERICA, Clerk of Court
Plaintiff - Appellee,
v. No. 18-6110
(D.C. No. 5:17-CR-00212-F-1)
TYREE DEANGELO CADE, a/k/a Baby (W.D. Okla.)
Monc,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and MORITZ, Circuit Judges.
_________________________________
Tyree Cade pleaded guilty to two counts of being a felon in possession of
ammunition. See 18 U.S.C. § 922(g)(1). Based on a total offense level of 30 and a
criminal-history category of IV, the Presentence Investigation Report (PSR)
determined that the United States Sentencing Guidelines (the Guidelines) called for a
sentence of 135 to 168 months in prison. Nevertheless, the district court imposed a
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
200-month prison sentence. Cade appeals, arguing his sentence is substantively
unreasonable. For the reasons discussed below, we reject this argument and affirm.
Background
The government charged Cade with two counts of being a felon in possession
of ammunition after he shot at Richard McFall on two separate occasions. Cade
ultimately pleaded guilty to both counts, and the PSR calculated a Guidelines range
of 135 to 168 months in prison. The PSR also detailed Cade’s extensive criminal
history, including a conviction for attempted first-degree burglary, two convictions
for unlawfully possessing a firearm, a pending charge for assault with a dangerous
weapon, and dismissed-but-soon-to-be-refiled charges for drug trafficking.
Before sentencing, Cade filed a memorandum describing his traumatic
upbringing. The memorandum recited that Cade’s mother was murdered when he was
only six years old, and his aunt was killed soon thereafter. Then, when Cade was only
11, his sister died as well. Cade suffered from depression and other mental-health
disorders but never received adequate treatment for “these deeply rooted issues.”
R. vol. 1, 40. And although Cade’s grandparents worked hard to provide for Cade, his
siblings, and his cousins—all seven of whom eventually came to live with Cade’s
grandparents in their three-bedroom house—his grandparents’ “insignificant
income,” “the trauma suffered by their grandchildren,” and the “unhealthy
neighborhood” where they lived “overcame even [his grandparents’] strongest
efforts.” Id. As a result, Cade sought “support, shelter, safety, and love” from another
source: membership in a gang. Id. (emphasis omitted). Yet despite his difficult
2
childhood, Cade later managed to find work as an electrician, sought to be a good
father to his children, and reconnected with his own absentee father.
Citing these circumstances and Cade’s potential for rehabilitation, defense
counsel asked the district court to “grant leniency upon him by imposing a sentence
at the low end of the [Guidelines] range.” Id. at 51. But the government objected to
this request. It argued that the crimes of conviction belied the true severity of Cade’s
underlying violent conduct. That conduct, the government explained, involved much
more than mere possession of ammunition: Cade twice shot at McFall, and
surveillance video suggested the first shooting was an attempt to injure, if not kill,
his victim. The government also cited Cade’s blatant disrespect for law enforcement
and the criminal-justice system, his history of gun possession, his repeated acts of
violence, and his postarrest conduct. In particular, the government noted that Cade
engaged in a physical altercation with McFall after the two men were arrested; spit
on McFall after McFall testified against Cade in state court; and assaulted a
correctional officer while in custody. Thus, the government urged the district court to
impose an upward variance and sentence Cade to 240 months in prison.
At the sentencing hearing, the district court recognized that it was “required to
consider several statutory factors” in determining the appropriate sentence, including
“the need to promote respect for the law”; “the need to afford” both specific and
general deterrence; “the need to provide correctional treatment”; and “the need to
protect the public from other crimes of this defendant.” R. vol. 3, 58–59; see also 18
U.S.C. § 3553(a) (listing factors district court must consider “in determining the
3
particular sentence to be imposed”). The district court then acknowledged Cade’s
traumatic upbringing, repeatedly stating that Cade “lived a hellish life as a young
boy.” R. vol. 3, 59; see also § 3553(a)(1). But the district court also cited both Cade’s
criminal history and the violent nature of the underlying offenses, ultimately
concluding that violence appeared to be “a way of life” for Cade. R. vol. 3, 60.
After listing each of these factors, the district court then explained why some
of them weighed less prominently in its sentencing analysis than did others. For
instance, the district court explained that it gave little weight to “the need to provide
correctional treatment” because it saw no indication Cade would “benefit[] in any
significant way from” such treatment. Id. at 59; see also § 3553(a)(2)(D). Likewise,
the court didn’t find “the need to afford specific deterrence” particularly compelling
because it determined that Cade wasn’t “really susceptible [to] any significant
deterrence by a sentence imposed by a court.” R. vol. 3, 58; see also § 3553(a)(2)(B).
And although the district court said the need to provide general deterrence weighed
“a little bit more prominent[ly]” in its analysis, it explained that “the far-and-away
predominant sentencing factor” in its decision was “incapacitation”—i.e., “the need
to protect the public from [Cade’s] other crimes.” R. vol. 3, 59; see also
§ 3553(a)(2)(B), (C).
The district court then stated:
My conclusion, taking into account the sentencing factors I’m
required to take into account . . . is that a sentence above the
[Guidelines] range but not at the maximum is . . . sufficient but not
greater than necessary to achieve the statutory objective of sentencing.
4
It is my conclusion that a sentence of 200 months of incarceration
is the sentence [that] is sufficient but not greater than necessary to
achieve the statutory objectives of sentencing.
R. vol. 3, 60; see also § 3553(a) (requiring district court to “impose a sentence
sufficient, but not greater than necessary”). Cade now appeals, arguing that his 200-
month sentence is substantively unreasonable.
Analysis
“Review for substantive reasonableness focuses on ‘whether the length of the
sentence is reasonable given all the circumstances of the case in light of the factors
set forth in [§ 3553(a)].’” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.
2009) (quoting United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir.
2008)); see also United States v. Walker, 844 F.3d 1253, 1255 (10th Cir. 2017)
(explaining that review for “[s]ubstantive reasonableness focuses on the length of the
sentence and requires that sentences be neither too long nor too short”). To that end,
our review of the district court’s sentencing decision is “informed by the district
court’s consideration of” the § 3553(a) factors. Walker, 844 F.3d at 1256.
But this doesn’t mean we may examine de novo either “the weight a district
court assigns to” these factors or “its ultimate assessment of the balance between
them.” United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008). Instead, in
reviewing for substantive reasonableness, we ask only “whether the district court
abused its discretion in weighing [the] § 3553(a) factors in light of the ‘totality of the
circumstances.’” United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Notably, this deferential
5
standard of review applies even where, as here, a district court imposes a sentence
that falls outside the applicable Guidelines range. See Gall, 552 U.S. at 51(explaining that we “must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance”).
In light of the applicable standard of review, “to win a substantive[-]
reasonableness appeal is no easy thing.” United States v. Rendon-Alamo, 621 F.3d
1307, 1310 n.** (10th Cir. 2010). “A district court abuses its discretion” only if “it
renders a judgment that is ‘arbitrary, capricious, whimsical, or manifestly
unreasonable.’” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)
(quoting United States v. Byrne, 171 F.3d 1231, 1235 (10th Cir. 1999)). Inherent in
this standard is the notion that there will often “be a range of possible [sentences] the
facts and law at issue can fairly support.” United States v. McComb, 519 F.3d 1049,
1053 (10th Cir. 2007). And “rather than pick and choose among” the possible
sentences ourselves, we must instead “defer to the district court’s judgment so long
as it falls within the realm of these rationally available choices.” Id. Thus, even if we
might “disagree[] with the [district court’s] conclusion that consideration of the
§ 3553(a) factors justified a marked deviation from the Guidelines range,” such
disagreement is insufficient “to support a holding that the district court abused its
discretion.” United States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014) (quoting
Smart, 518 F.3d at 808).
Nevertheless, substantive-reasonableness review is no toothless formality. See
United States v. Pinson, 542 F.3d 822, 836 (10th Cir. 2008) (“[A]ppellate review
6
continues to have an important role to play and must not be regarded as a rubber
stamp.”). District courts will sometimes “impose sentences that are unreasonable.”
Rita v. United States, 551 U.S. 338, 354 (2007). And we have a duty “to correct such
mistakes when they occur.” Id. Thus, we will not hesitate to deem a sentence
substantively unreasonable if “the balance struck by the district court among the
factors set out in § 3553(a) is . . . arbitrary, capricious, or manifestly unreasonable.”
United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008); see also, e.g., Walker,
844 F.3d at 1255 (holding that defendant’s sentence was substantively unreasonable
where district court “placed inadequate weight on” certain § 3553(a) factors).
According to Cade, the district court “struck” just such a “manifestly
unreasonable” balance here. Sells, 541 F.3d at 1239. Specifically, Cade asserts that
the district court placed too much weight on the need “to protect the public from [his]
further crimes.” § 3553(a)(2)(C). And he insists the district court simultaneously
placed too little weight on his “history and characteristics,” § 3553(a)(1)—including
his “traumatic upbringing,” “his lack of . . . substance[-]abuse issue[s], his ability to
maintain a good job, and his close ties with his family despite his criminal behavior,”
Aplt. Br. 12.
We cannot agree. As an initial matter, it’s clear that the district court fully
appreciated Cade’s “history and characteristics.” § 3553(a)(1). For instance, the court
described Cade’s childhood as “hellish” no fewer than four times. R. vol. 3, 59.
Likewise, the district court cited Cade’s employment history and noted that Cade
“had the ability to make good money.” Id. at 53. But contrary to Cade’s arguments,
7
these factors didn’t necessarily weigh in favor of a within-Guidelines sentence. As
the district court explained, the fact that Cade “had the ability to make a good living
and be a good provider” via legitimate channels left the district court “scratching [its]
head”: what “excuse” did Cade have for turning to crime instead? Id. at 53–54.
Similarly, after acknowledging Cade’s “hellish life as a young boy,” the
circumstances of the underlying offenses, and Cade’s criminal history, the district
court ultimately concluded that “violence is a way of life” for Cade. Id. at 60. Thus,
factors like Cade’s ability to make a good living and his difficult childhood “cut both
ways.” United States v. Taylor, 907 F.3d 1046, 1048, 1052 (7th Cir. 2018) (affirming
defendants’ within-Guidelines sentences where district court “evaluated the history
and characteristics of [defendants], which [district court] thought cut both ways—
[defendants] faced traumatic upbringings and likely experienced mental-health
problems, but they, unlike many who endure similar suffering, made the decision to
turn to violent crime”).
Under these circumstances, we cannot say the district court abused its
discretion in concluding that the violent nature of the instant crimes, coupled with
Cade’s predilection for violent behavior—which persisted even after his arrest in this
case—rendered paramount “the need to protect the public from other crimes of this
defendant.” R. vol. 3, 59; cf. Lente, 759 F.3d at 1173 (noting that although evidence
of defendant’s difficult childhood could serve as mitigating factor, “the mitigating
strength” of such evidence was “severely undercut by [defendant’s] post[]conviction
conduct” where defendant’s “substance abuse continued during her incarceration”;
8
explaining that “[e]vidence of childhood trauma, psychological issues, or youthful
indiscretion is most powerful when accompanied by signs of recovery”).
In particular, Cade has displayed both an obvious willingness to inflict
violence upon his intended victims as well as a disregard for the safety of any
unintended victims who might be caught in the literal or figurative crossfire. For
instance, the underlying offenses each arose from Cade’s act of firing a gun in a
residential neighborhood. And when Cade and McFall engaged in a physical
altercation after both men were arrested, at least one correctional officer had to
intervene in order to separate the two. Accordingly, the district court was justified in
placing great weight “on the need to protect the public from other crimes of this
defendant.” R. vol. 3, 59; cf. United States v. Dace, 842 F.3d 1067, 1070 (8th Cir.
2016) (affirming upward variance where district court noted that underlying offense
conduct “pose[d] a substantial threat to innocent bystanders” and cited “the need to
protect the public”).
In short, we cannot say “the balance struck by the district court among the
factors set out in § 3553(a) [was] . . . arbitrary, capricious, or manifestly
unreasonable.” Sells, 541 F.3d at 1239. Nor can we say the district court’s reasons for
imposing a 200-month prison sentence, rather than a sentence that fell within the
Guidelines range of 135 to 168 months in prison, are “[in]sufficiently compelling to
support the degree of the variance.” Gall, 552 U.S. at 50. Accordingly, we hold that
Cade’s sentence is substantively reasonable.
9
Conclusion
Because Cade fails to demonstrate the district court’s sentencing decision falls
outside the realm of rationally available choices, we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
10