United States v. Daniel Laffite Dumonde , 509 F. App'x 859 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12633
Non-Argument Calendar
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D.C. Docket No. 2:04-cr-00176-SLB-JEO-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL LAFFITE DUMONDE,
a.k.a. Daniel Laffite Dumonde,
a.k.a. Paul Moore,
a.k.a. Danny,
a.k.a. Daniel Spencer,
a.k.a. Daniel Pruitt Spencer,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 14, 2013)
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Before HULL, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Daniel Laffite Dumonde, a federal prisoner proceeding pro se, appeals his
24-month sentence, which is the statutory maximum and represents an upward
variance of 12 months, following the revocation of his supervised release. He
argues on appeal that: (1) his sentence is procedurally and substantively
unreasonable; (2) the sentencing judge was biased against him; (3) the judge’s
decision to impose an upward variance the night before sentencing violates his due
process and Sixth Amendment rights; and (4) the district court judge’s reliance on
criminal history to support the upward variance, without an enumeration of the
specific offenses underlying that decision, violated Dumonde’s Sixth Amendment
rights. We find no merit in any of these contentions and affirm.
1. Reasonableness of Sentence
Dumonde first argues that his sentence was procedurally and substantively
unreasonable. He begins by submitting that the district court failed to adequately
explain the reasons for the sentence imposed and erred by referencing his criminal
history as a basis for an upward variance without spelling out exactly which
criminal offenses supported the variance. He then argues that the 24-month
sentence is substantively unreasonable because it is greater than necessary to give
effect to the purposes of sentencing.
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A sentence imposed upon revocation of supervised release is reviewed for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.
2006) (per curiam). Our reasonableness inquiry includes two distinct elements: we
first determine whether a sentence is procedurally reasonable, and then turn our
attention to whether the sentence is, on the whole, substantively reasonable. See
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008) (per curiam). We
review the reasonableness of the sentence imposed by the district court “under
[the] deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38,
41, 128 S. Ct. 586, 591 (2007).
In reviewing the reasonableness of a sentence, we consider the factors
enumerated in § 3553(a). United States v. Pugh, 515 F.3d 1179, 1188 (11th Cir.
2008); see 18 U.S.C. § 3583(e) (providing that district court must consider the
§ 3553(a) sentencing factors when sentencing a defendant upon revocation of
supervised release). These factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for the
sentence to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; (3) the need to deter criminal
conduct; (4) the need to protect the public from further crimes of the defendant; (5)
the need to provide the defendant with educational or vocational training or
medical care; (6) the kinds of sentences available; (7) the United States Sentencing
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Guideline (Guideline) range; (8) policy statements of the United States Sentencing
Commission; (9) the need to avoid unintended sentencing disparities; and (10) the
need to provide restitution to victims. See 18 U.S.C. § 3553(a). The party
challenging a sentence “bears the burden of establishing that the sentence is
unreasonable in the light of both th[e] record and the factors in [§] 3553(a).”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).
To be procedurally reasonable, the district court must properly calculate the
Guideline range, treat the Guidelines as advisory rather than mandatory, consider
all of the § 3553(a) factors, and adequately explain the sentence imposed. See
United States v. Chavez, 584 F.3d 1354, 1364 n.13 (11th Cir. 2009). In explaining
the sentence, the district court should set forth enough information to satisfy the
reviewing court of the fact that it has considered the parties’ arguments and has a
reasoned basis for making its decision, United States v. Rita, 551 U.S. 338, 356,
127 S. Ct. 2456, 2468 (2007), but “nothing . . . requires the district court to state on
the record that it has explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). Instead, the district court’s explanation suffices if it is clear from
the explanation that the court considered a number of the relevant sentencing
factors. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). If the
district court varies from the Guideline range, it must offer a justification sufficient
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to support the degree of the variance. See United States v. Irey, 612 F.3d 1160,
1187 (11th Cir. 2010) (en banc): see also Gall, 552 U.S. at 50, 128 S. Ct. at 597(explaining that if the district judge “decides that an outside-Guidelines sentence is
warranted, he must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance”).
We discern no procedural infirmity in Dumonde’s sentencing. In
sentencing Dumonde, the district court explicitly referred to various § 3553(a)
factors, explaining that the 24-month sentence was necessary to reflect the
seriousness of Dumonde’s offense, promote respect for the law, provide just
punishment, and provide adequate deterrence to criminal conduct. The sentencing
court further emphasized that a variance above the Guideline range was “in
particular . . . necessary to protect the public from further crimes of the defendant.”
This explanation satisfies us that the district court considered the parties’
arguments and exercised its reasoned judgment in imposing Dumonde’s 24-month
sentence.1 See Rita, 551 U.S. at 356, 127 S. Ct. at 2468.
Dumonde also contends that his sentence was procedurally unreasonable
because it was incumbent upon the district judge to specify exactly which parts of
1
Insofar as Dumonde’s brief can be read to argue that the district court erred by failing to
provide a written statement of reasons for the variance in accordance with § 3553(c)(2), any such
error was harmless in light of the district court’s thorough explanation of the reasons underlying
its decision. United States v. Suarez, 939 F.2d 929, 934 (11th Cir. 1991) (explaining that “a
review of the transcript of the sentencing proceedings and the [presentence investigation report]
allows this Court to engage in the meaningful review envisioned by the Sentencing Guidelines”).
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Dumonde’s lengthy criminal record formed the basis for the upward variance. The
problem with this argument, of course, is that no rule of law supports it. Nothing
requires the district court to parse through a defendant’s criminal record to specify
exactly which portions of that record form the basis for a given sentence. “It is
sufficient that the district court considers the defendant’s arguments at sentencing
and states that it has taken the § 3553(a) factors into account.” United States v.
Sanchez, 586 F.3d 918, 936 (11th Cir. 2009). The district court did just that, and
provided a compelling justification for the variance imposed. There was no
procedural error.
Once we determine that a sentence is procedurally sound, we then examine
whether the sentence is substantively reasonable in light of the totality of the
circumstances, including the degree of any variance from the Guideline range.
Gall, 552 U.S. at 51, 128 S. Ct. at 597. In determining whether a sentence is
substantively reasonable, we engage in a “deferential” assessment of whether the
sentence imposed is sufficient, but not greater than necessary, to comply with the
purposes of sentencing set forth in § 3553(a)(2). Talley, 431 F.3d at 788. “In our
evaluation of a sentence for reasonableness, we recognize that there is a range of
reasonable sentences from which the district court may choose, and when the
district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Id. Thus, we will vacate
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and remand for a new sentencing “if, but only if, we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190(internal quotation marks omitted); see also Pugh, 515 F.3d at 1194 (observing that
“a sentence may be unreasonable if it is grounded solely on one factor, relies on
impermissible factors, or ignores relevant factors”).
Turning to the facts at hand, the district court found itself confronted with a
defendant who possessed an extensive history of property crimes, including
burglary, grand theft, acquiring an access card without consent, and making,
uttering, and possessing a counterfeit security. Dumonde had also twice been
convicted of using counterfeit checks to purchase diamond rings. The revocation
of supervised release in this case stems from Dumonde’s conviction for third-
degree theft of property in Alabama, a crime which involved the use of another
person’s credit card without permission. Dumonde’s history thus reveals that he
not only presents a threat of recidivism, but is indeed a chronic perpetrator of
larcenous property crimes. In other words, Dumonde is a thief. It should come as
no surprise, then, that a thief might end up in prison. We think the district court
was not only reasonable, but eminently so, in determining that an upward variance
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was necessary to promote respect for the law, provide just punishment, deter
Dumonde from further criminal activity, and protect the public from further crime.
2. Personal Bias
Dumonde summarily argues that the judge was biased against him because
she indicated at his sentencing that he “needed” and “deserved” the maximum
sentence. This argument fails. We construe Dumonde’s argument as a claim that
the district judge should have recused herself due to personal bias. Because
Dumonde did not raise this issue below, we review it only for plain error. See
United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (per curiam).
Dumonde points to nothing other than the fact of his sentence and the judge’s
explanation that he “needed” such a sentence—in other words, an adverse ruling—
to support his position that the judge was biased. “[A]dverse rulings alone do not
provide a party with a basis for holding that the court’s impartiality is in doubt.”
Id. (internal quotation marks omitted). Accordingly, Dumonde has failed to show
error—plain or otherwise—in the judge’s failure to recuse herself from this case.
3. Due Process and Sixth Amendment Right to Counsel
Dumonde next argues that the district judge violated his due process and
Sixth Amendment rights by deciding to impose an upward variance the night
before his sentencing. This argument fares no better. Again, because he offers this
argument for the first time on appeal, we review it only for plain error. See United
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States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). A defendant facing
revocation of supervised release is entitled to certain minimum due process rights,
including an opportunity to be heard in person. See Morrissey v. Brewer, 408 U.S.
471, 488–89, 92 S. Ct. 2593, 2604 (1972) (establishing minimum due process
rights at hearings for revocation of parole); United States v. Copeland, 20 F.3d
412, 414 (11th Cir. 1994) (explaining that Morrissey’s protections extend to
revocations of supervised release). Dumonde had the opportunity to be heard in
person, and was represented by counsel at the revocation proceeding. Dumonde
cites no caselaw—perhaps because there is none—for the proposition that the
district court erred by reviewing his case the night before his sentencing. And at
sentencing, the court heard arguments from Dumonde’s counsel and stated, “as I
started looking at [Dumonde’s] prior record, it was my decision at my thoughts last
night and still this morning that a high end sentence was appropriate.”
In other words, the record reveals that the sentencing judge formed an initial
opinion concerning whether to impose an upward variance before the sentencing,
gave Dumonde’s counsel the opportunity to change that initial opinion at the
sentencing, but ultimately maintained the opinion after hearing the parties’
arguments. We see no infirmity here. A sentencing judge is not only permitted—
but is in fact well advised—to review a defendant’s record and to consider the facts
of a given case in advance of sentencing. Dumonde cannot show plain error in the
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district judge’s comment that she had decided to impose an upward variance the
night before sentencing.
4. Failure to Specify the Specific Crimes Underlying the Variance
Finally, Dumonde avers that the district court violated his Sixth Amendment
right to be informed of the nature and cause of the accusation underlying the
upward variance because the court cited his criminal history and “prior record,” but
failed to detail exactly which prior crimes it had in mind. We cannot agree.
Dumonde did not raise this issue below, and we therefore review it only for plain
error. See Rodriguez, 398 F.3d at 1298. “It is the law of this circuit that, at least
where the explicit language of a statute or rule does not specifically resolve an
issue, there can be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” United States v. Fontenot, 611 F.3d 734,
737 (11th Cir. 2010) (internal quotation marks omitted). No rule of the Supreme
Court or of this Court requires a sentencing to judge the state specifically which
parts of a criminal defendant’s lengthy criminal history form the basis for an
upward variance based upon the defendant’s prior criminal history. Accordingly,
this argument, as with all of Dumonde’s arguments on appeal, must fail.
AFFIRMED.
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