United States v. Kevin Klarell Washington , 248 F. App'x 86 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 11, 2007
No. 06-16482 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00205-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN KLARELL WASHINGTON,
a.k.a. Tank,
Defendant-Appellant.
________________________
No. 06-16483
Non-Argument Calendar
________________________
D. C. Docket No. 06-00205-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAVONNIA WASHINGTON,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(September 11, 2007)
Before BIRCH, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Kevin Klarell Washington (“Kevin”) and
Lavonnia Washington (“Lavonnia”) appeal their sentences imposed after pleading
guilty to distributing crack cocaine (Kevin), sending a false distress signal to the
United States Coast Guard (Kevin), and making false declarations before a grand
jury (Lavonnia). For the reasons that follow, we affirm.
I. BACKGROUND
A. Offense Conduct
In July 2006, a federal grand jury indicted Kevin and his wife Lavonnia in a
ten-count indictment. Pursuant to a written plea agreement, Kevin pleaded guilty
to one count of distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
2
and one count of sending a false distress message to the Coast Guard, in violation
of 14 U.S.C. § 88(c). Lavonnia pleaded guilty to making false declarations before
a grand jury, in violation of 18 U.S.C. § 1623.
According to the presentence investigation reports (“PSI”), a confidential
informant purchased crack cocaine from Kevin in Savannah, Georgia on five
occasions between late 2004 and early 2005. In August 2005, agents with the Drug
Enforcement Administration (“DEA”) traveled to the Washingtons’ home and
seized two vehicles that had been used to facilitate drug sales. The next day, the
Washingtons met with DEA agents and learned that evidence would soon be
presented to the grand jury regarding Kevin’s involvement in selling crack cocaine.
The agents offered Kevin the opportunity to assist in the DEA’s investigation of
other suspects. Kevin asked for time to consider the offer.
On September 13, 2005, Lavonnia’s brother, Timothy Sapp, initiated an
emergency distress call to the Coast Guard and reported that Kevin had fallen
overboard from a fishing vessel into the Wilmington River. Over the next 48
hours, the Coast Guard conducted an extensive search for Kevin, using boats,
helicopters, and an airplane, but they did not find Kevin. The Coast Guard
expended a total of $314,019 during the unsuccessful search. On September 28,
2005, Lavonnia contacted the DEA and solicited the agency to pay $33,000 for a
3
diver to continue to search for Kevin’s body. The DEA refused.
On October 1, 2005, a memorial service was held for Kevin at a church in
Savannah. Several friends and family members spoke about Kevin, and after the
ceremony, the family placed a wreath in the Wilmington River to memorialize his
life.
Federal agents, however, remained suspicious of the timing and
circumstances of Kevin’s disappearance. Believing that Kevin was still alive,
agents with the Coast Guard served Sapp a subpoena to appear before a federal
grand jury in Savannah. In response, Sapp admitted to the agents that Kevin had
staged his death by jumping off of the fishing vessel and boarding the boat of a
friend who transported him ashore. Once Kevin reached the shore, he was driven
by friends and family to Columbia, South Carolina, where he stayed for two weeks
in a motel room rented for him by Lavonnia. Sapp then drove Kevin from
Columbia to Yemassee, South Carolina, where he was reunited with Lavonnia.
Thereafter, Kevin traveled to Virginia and then to Orlando, Florida. At some
point, he assumed a false identity using forged documents.
On June 9, 2006, Lavonnia testified before the grand jury that she believed
Kevin was dead and that she had not seen him since several days before the
September 2005 accident.
4
Kevin was ultimately captured and arrested in Orlando, Florida on June 21,
2006. After Kevin’s arrest, Lavonnia admitted that she had always known Kevin
was alive and that she had seen him since the feigned boating accident.
B. Kevin’s Sentence
In the PSI, the probation officer calculated Kevin’s offense level for the
cocaine-distribution offense as 34, including a two-level enhancement for
obstruction of justice, pursuant to U.S.S.G. § 3C1.1. Finding U.S.S.G. § 2B1.1
(which pertains to economic offenses) to be the most appropriate Guideline for
Kevin’s false-distress-signal offense, the probation officer assessed Kevin’s
offense level as 18, including a 12-level enhancement for the $314,019 amount of
loss incurred by the Coast Guard. Pursuant to U.S.S.G. § 3D1.2, Kevin’s offenses
were grouped together, resulting in an adjusted offense level for the group of 34 (as
the highest adjusted offense level of the offenses in the group). The probation
officer then assessed a three-level reduction for acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1(a), resulting in a total offense level of 31.
Regarding Kevin’s criminal history, the probation officer stated that Kevin
was sentenced to six years’ probation on July 26, 1995 in state court after he
pleaded guilty to cocaine possession. That probation was revoked upon Kevin’s
arrest for marijuana possession in February 1996, and he was imprisoned for 60
5
days. In November 1999, Kevin was arrested for selling cocaine, and on April 7,
2000, he pleaded guilty to the sale of a controlled substance and possession of a
controlled substance with intent to distribute. On that same day, Kevin’s probation
for his 1995 cocaine-possession conviction was revoked for the balance of the
term, which the probation officer calculated as “one year, three months, and 19
days.” In an addendum to the PSI, the probation officer acknowledged that there
were no state court records documenting precisely what constituted “the balance”
of Kevin’s probation at the time of the April 2000 revocation. Given the
unavailability of the record, the probation officer “simply subtracted the amount of
time [Kevin] had served on probation from the amount of time originally
imposed.” Because the calculated term of imprisonment exceeded one year and
one month, the probation officer assigned three criminal history points, pursuant to
U.S.S.G. § 4A1.1(a).
The probation officer also assessed one criminal history point each for
Kevin’s 1997 conviction for driving with a suspended license and his 1998
conviction for obstruction of a law enforcement officer by providing false
information.1 Kevin was thus assigned a total of 11 criminal history points,
resulting in a criminal history category of V. With a total offense level of 31 and a
1
Kevin was sentenced to one year of probation for each of these convictions.
6
criminal history category of V, Kevin’s Sentencing Guidelines imprisonment range
was 168 to 210 months.
Kevin raised several objections to the PSI. As relevant to the instant appeal,
Kevin objected to: the two-level enhancement for obstruction of justice; the three
criminal history points assessed for his previous conviction for cocaine possession;
the criminal history point assessed for his 1997 conviction for driving with a
suspended license; and the criminal history point assessed for his 1998 conviction
for obstruction of a law enforcement officer. Kevin also asserted that he should
receive a downward departure pursuant to U.S.S.G. § 5K2.0 because his cocaine-
distribution offense had no victim and the advisory Guidelines range was unduly
harsh, as it reflected the sentencing disparity between crack and powder cocaine.
At the sentencing hearing, Kevin reiterated his objections to the PSI and, for
the first time, argued that the two-level enhancement for obstruction of justice
constituted double punishment because he had agreed to pay approximately
$314,019 in restitution pursuant to his plea agreement. The district court
summarily overruled all of Kevin’s objections and found Kevin’s Guidelines range
to be 168 to 210 months’ imprisonment. After hearing argument from counsel, a
statement from Kevin, and statements from several of Kevin’s friends and family
members, the court sentenced him to 188 months’ imprisonment. In imposing the
7
sentence, the court discussed the “ruse” Kevin staged to evade authorities (that is,
faking his death), the costs borne by the resource-strapped Coast Guard as a result
of that ruse, and Kevin’s long-time involvement in the sale and use of drugs. The
court also noted “the statutory factors set in 18 U.S.C. [§] 3553(a).”
C. Lavonnia’s Sentence
The probation officer assigned Lavonnia a base offense level of 14, pursuant
to U.S.S.G. § 2J1.3. The probation officer then assessed a two-level reduction for
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), resulting in a total
offense level of 12. With an offense level of 12 and a criminal history category of
II, Lavonnia’s Guidelines imprisonment range was 12 to 18 months. Lavonnia
raised no objections to the PSI, but she submitted a statement to the court
requesting a downward departure based on her need to care for her young child.
At the sentencing hearing, Lavonnia reiterated her request for a downward
departure, asserting that her father had recently died, her mother was financially
and physically dependent on her, and her young son had no other competent
caregiver.
Before pronouncing the sentence, the district court made several statements
regarding Lavonnia’s conduct. As to Lavonnia’s request that the DEA pay
approximately $33,000 for a diver to continue searching for Kevin approximately
8
two weeks after his disappearance, the court stated that “the most egregious
conduct in the whole unfolding of the conspiracy, to have the cheek, the audacity
to go and ask for more money to further a search that she knew and she had
conspired with, and knew it was bogus from the outset.” Regarding the plea
agreement, the district court stated that it “was a great benefit to [Lavonnia], not
only from the advisory guidelines range, [which was] substantially lower than [it]
would have been had she been convicted of all counts in the indictment[,]” but
“[r]estitution cannot be ordered to the United States Coast Guard for criminal
conduct in which [Lavonnia] played a significant part.” And regarding Lavonnia’s
motion for a downward departure, the court stated “I noticed the egregious conduct
of this defendant who had considerably above-average earnings, and her pursuit of
more investigation, and more money, and more resources to be committed to a
hunt . . . that she knew was absolutely futile.”
Accepting the calculations in the PSI, the court concluded that Lavonnia’s
total offense level was 12, her criminal history category was II, and her Guidelines
imprisonment range was 12 to 18 months. The court also noted that the statutory
maximum sentence for her offense was five years’ imprisonment. Stating that “her
conduct in this instance merits that extra six months,” the court sentenced
Lavonnia to 24 months’ imprisonment “[p]ursuant to the Sentencing Reform Act
9
of 1984.” Lavonnia raised no objections to the sentence.
II. STANDARDS OF REVIEW
We review for clear error the district court’s findings of fact regarding the
imposition of an enhancement and the assessment of criminal history points under
the Sentencing Guidelines. United States v. Rubio, 317 F.3d 1240, 1244 (11th Cir.
2003); United States v. Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir.
2004). “[W]hen a defendant challenges a factual basis of his sentence, the
government has the burden of establishing the disputed fact by a preponderance of
the evidence.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004)
(quotation marks omitted). “It is the district court’s duty to ensure that the
Government carries this burden by presenting reliable and specific evidence.”
United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir. 1996).
We review de novo the “district court’s interpretation of the Guidelines and
its application of the Guidelines to the facts.” United States v. McGill, 450 F.3d
1276, 1278 (11th Cir. 2006).
We review the ultimate sentence imposed for reasonableness, in light of the
record and the factors set forth in 18 U.S.C. § 3553(a). United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). Our “[r]eview for reasonableness is
deferential[,]” and “the party who challenges the sentence bears the burden of
10
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in section 3553(a).” Id.
And we review issues raised for the first time on appeal for plain error. See
United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005).
III. DISCUSSION
In this consolidated appeal, Kevin argues that the district court erred by
imposing: (1) a two-level enhancement for obstruction of justice; (2) one criminal
history point each for his 1997 conviction for driving with a suspended license and
his 1998 conviction for obstructing a law enforcement officer; (3) three criminal
history points for his 1995 drug-possession conviction; and (4) a sentence that is
unreasonable. Lavonnia argues that the district court erred by failing to give her
notice that it was contemplating an upward departure. We address each argument
in turn.
A. Enhancement for Obstruction of Justice
Pursuant to § 3C1.1, a defendant’s offense level may be increased by two
levels if the court finds that:
(A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense . . . .
11
U.S.S.G. § 3C1.1. Application Note 5 accompanying § 3C1.1 provides that
“avoiding or fleeing from arrest” is a type of conduct that “ordinarily” does not
warrant application of this enhancement. Id. § 3C1.1, comment. (n.5(e)) (emphasis
added). Accordingly, in United States v. Alpert, this court held that “successfully
avoiding arrest, alone, does not warrant an enhancement for obstruction of
justice. . . . [T]he § 3C1.1 enhancement does not apply to persons engaged in
criminal activity who learn of an investigation into that activity and simply
disappear to avoid arrest, without more.” 28 F.3d 1104, 1107 (11th Cir. 1994)
(emphasis added). But the obstruction enhancement may be warranted if the
defendant “engaged in additional conduct while avoiding arrest, . . . particularly if
that conduct significantly hindered the investigation or prosecution of [his]
offenses.” Id. (emphasis added).
Kevin first argues that because both the two-level obstruction enhancement
and the restitution order were imposed as a result of his false-distress-signal
offense (what Kevin terms, “the obstructive offense”), he has received “double
punishment” for the same conduct. He argues that the restitution order “punished
[him] independently for the obstructive conduct” because his “conviction for false
distress signal under 14 U.S.C. § 88(c) is what triggered the restitution.”
According to Kevin, this “result contradicts Application Note 7 which directs no
12
further adjustment for obstruction unless significant further obstruction occurred,”
and “there was no significant further obstruction.” We are unpersuaded.
The obstruction enhancement did not constitute “double punishment”
because the purpose of restitution under 14 U.S.C. § 88(c) is not to punish, but to
compensate the Coast Guard for the resources it expended in responding to Kevin’s
false distress call. See United States v. James, 986 F.2d 441, 444 (11th Cir. 1993)
(“[T]he cost provision in 14 U.S.C. § 88(c) requires that [the defendant] be held
liable for all costs the Coast Guard incurred in responding to [the defendant’s] false
distress message.”). Moreover, the conduct supporting the obstruction
enhancement—sending a false distress signal, faking his death, fleeing to South
Carolina, holding a funeral service in which he was eulogized by friends and
family, assuming a false identity using forged documents, and evading federal
authorities for approximately eight months—constituted much more than the mere
act of “sending a false distress signal” and was not fully accounted for in the
restitution Kevin was ordered to pay under 14 U.S.C. § 88(c). Rather, the
obstruction enhancement reflects (and punishes) the series of actions in which
Kevin directed and participated as part of his elaborate ruse to evade federal
authorities and stymie their investigation.
Furthermore, Kevin’s reliance on Application Note 7 is misplaced.
13
Although Application Note 7 provides that an obstruction enhancement may not be
applied to an obstruction offense, U.S.S.G. § 3C1.1, comment. (n.7), here, the
obstruction enhancement was applied to Kevin’s cocaine-distribution offense.
Thus, even assuming Kevin’s false-distress-signal offense constitutes an
“obstruction offense,” the obstruction enhancement was not applied to this
offense.2
Kevin next argues that his “flight itself was insufficient to support” the
enhancement, and he cites Application Note 5 and Alpert to support this
contention. He also asserts that there “may have been other motives” for his flight,
including fear of other drug dealers who may have known that he was considering
cooperating with federal officials. To that end, he argues that he did not possess
the mens rea required under the Guidelines because he did not “willfully” obstruct
justice. Again, we are unpersuaded.
First, although Application Note 5 provides that “avoiding or fleeing from
2
As discussed above, Kevin’s offense level for the cocaine-distribution offense was
calculated as 34, including the two-level enhancement for obstruction of justice, pursuant to
U.S.S.G. § 3C1.1. Kevin’s offense level for sending a false distress signal was calculated as 18,
including a 12-level enhancement for the $314,019 amount of loss incurred by the Coast Guard,
pursuant to § 2B1.1(b)(1)(G). Thus, an enhancement for obstruction of justice was not applied
to the false-distress-signal offense. Pursuant to § 3D1.2, Kevin’s cocaine-distribution offense
was grouped with his false-distress-signal offense, resulting in an adjusted offense level for the
group of 34 (which is the highest adjusted offense level of the two offenses in the group). See
U.S.S.G. § 3D1.2(a)-(c). Kevin’s offense level was then reduced by three levels assessed for his
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), resulting in a total offense level of
31.
14
arrest” “ordinarily” does not warrant application of the § 3C1.1 enhancement, it
does not entirely foreclose the application of this enhancement, especially where
the conduct at issue involved more than merely “avoiding or fleeing from arrest.”
See id. § 3C1.1, comment. (n.5(e)). And although we held in Alpert that the
obstruction enhancement does not apply to persons who learn of an investigation
into their criminal activity “and simply disappear to avoid arrest, without more,”
we also held that the obstruction enhancement may be warranted if the defendant
“engaged in additional conduct while avoiding arrest, . . . particularly if that
conduct significantly hindered the investigation or prosecution of [his] offenses.”
Alpert, 28 F.3d at 1107 (emphasis added). Contrary to his assertions, Kevin did
“more” than “simply disappear to avoid arrest.” Kevin not only sent a false
distress signal to the Coast Guard, he faked his death, fled the state of Georgia, had
his wife and others hold a memorial service for him, assumed a false identity using
forged documents, and evaded authorities for approximately eight months. Thus,
Kevin “engaged in additional conduct while avoiding arrest,” and this conduct
significantly hindered the investigation and prosecution of his underlying offense
(cocaine distribution). See id. As such, Kevin’s reliance on Application Note 5
and Alpert is misplaced.
We also reject Kevin’s argument that he lacked the mens rea of “willfulness”
15
required under the Guidelines. The timing of Kevin’s feigned death, his
subsequent efforts to evade law enforcement (for example, assuming a false
identity by using forged documents, and fleeing to South Carolina, Virginia, and
ultimately to Florida), his family’s ongoing cover-up of the ruse, and the
substantial degree of planning required to execute the ruse all create a strong
inference that Kevin “willfully” obstructed and impeded the Government’s efforts
to investigate and prosecute him for his cocaine-distribution activities. That
Kevin’s actions may also have been motivated by his fear of other drug dealers is
of no moment.
B. Criminal History Points for Driving with a Suspended License &
Obstructing Law Enforcement by Providing False Information
Section 4A1.1 of the Sentencing Guidelines sets forth the number of
criminal history points to assign to certain prior convictions based on a variety of
factors, including the length of imprisonment imposed. U.S.S.G. § 4A1.1; United
States v. Glover, 154 F.3d 1291, 1293 n.3 (11th Cir. 1998). Under § 4A1.1(a), the
district court must assess three criminal history points for each prior sentence of
imprisonment exceeding one year and one month. U.S.S.G. § 4A1.1(a). Pursuant
to § 4A1.1(b), the district court must assign two criminal history points for each
prior sentence of imprisonment of at least 60 days that is not counted in
§ 4A1.1(a). Id. § 4A1.1(b). And under § 4A1.1(c), one criminal history point is to
16
be added for each prior sentence that is not included in § 4A1.1(a) and § 4A1.1(b).
Id. § 4A1.1(c). Sentences imposed for certain enumerated offenses, such as
“[d]riving without a license or with a revoked or suspended license” and providing
“[f]alse information to a police officer[,]” are counted “only if (A) the sentence
was a term of probation of at least one year or a term of imprisonment of at least
thirty days, or (B) the prior offense was similar to an instant offense.” Id.
§ 4A1.2(c)(1).
“A conviction for which the imposition or execution of sentence was totally
suspended or stayed shall be counted as a prior sentence under § 4A1.1(c).” Id.
§ 4A1.2(a)(3). To that end, Application Note 2 accompanying § 4A1.1 provides
that “[f]or the purposes of applying § 4A1.1(a), (b), or (c), the length of a sentence
of imprisonment is the stated maximum . . . . That is, criminal history points are
based on the sentence pronounced, not the length of time actually served.” Id.
§ 4A1.2, comment. (n.2) (emphasis added). Thus, for example, in United States v.
Baker, 116 F.3d 870 (11th Cir. 1997), following the defendant’s conviction in state
court for writing worthless checks, the state court sentenced him to one year of
probation, contingent upon his paying the assessed fees. Id. at 873. This court
applied the “stated maximum” rule and held that “the length of the probationary
sentence received by” the defendant “is—for the purpose of computing his criminal
17
history score—one year, the ‘stated maximum.’” Id. at 874 (emphasis added).
Here, the PSI states that Kevin pleaded guilty to driving with a suspended
driver’s license in 1997, and he was sentenced to 12 months’ probation and
ordered to pay a $400 fine. The PSI also states that in 1998, Kevin pleaded guilty
to obstructing a law enforcement officer by providing false information, and he
was given a suspended sentence of 12 months’ probation and ordered to pay a
$150 fine. Kevin was assessed one criminal history point for each of these
offenses.
Kevin asserts that the one year of probation imposed following his 1997
conviction for driving with a suspended license was contingent on payment of a
fine, and once he paid the fine, the probation was terminated. He further asserts
that the state court suspended the one year of probation imposed following his
1998 conviction for obstructing a law enforcement officer by providing false
information. Thus, according to Kevin, because he did not actually serve the
probation imposed for either the 1997 or the 1998 convictions, the assessment of a
criminal history point for each of these convictions was in error. We disagree.
As stated above, the Guidelines provide that sentences imposed for driving
“with a revoked or suspended license” and providing “[f]alse information to a
police officer[,]” are counted in assessing criminal history points if, inter alia, “the
18
sentence was a term of probation of at least one year.” U.S.S.G. § 4A1.2(c)(1).
And “criminal history points are based on the sentence pronounced, not the length
of time actually served.” Id. § 4A1.2, comment. (n.2) (emphasis added); Baker,
116 F.3d at 873 n.6 (“[T]he relevant inquiry is what sentence was imposed, not
what sentence was actually served.”). Because the sentence actually pronounced
following each of the offenses at issue was one year of probation, the assessment
of one criminal history point for each of these offenses was not erroneous. That
Kevin may not have actually served one year of probation for these offenses is
irrelevant. See Baker, 116 F.3d at 873 n.6.
C. Criminal History Points for Cocaine Possession
As discussed above, pursuant to U.S.S.G. § 4A1.1(a), the district court must
assess three criminal history points for each prior sentence of imprisonment
exceeding one year and one month, and under § 4A1.1(b), the district court must
assign two criminal history points for each prior sentence of imprisonment of at
least 60 days that is not counted in § 4A1.1(a). U.S.S.G. § 4A1.1(a), (b).
On appeal, Kevin argues that the assignment of three criminal history points
for his 1995 cocaine-possession conviction is “speculative” because there is no
record evidence that he served more than one year and one month in prison as a
result of this conviction. Kevin states that as a result of his 1999 arrest for selling
19
cocaine, in April 2000, he was convicted of selling and distributing cocaine in
violation of state law, and he was sentenced to six years and six months of
imprisonment. He contends that the probation imposed for his 1995 conviction
was revoked following his 2000 convictions, and “[t]he time served for revocation
was served concurrently with the sentence” imposed for these convictions. In
support of this contention, Kevin submits a document from the Superior Court of
Chatham County, Georgia, which shows that on April 7, 2000, his probation was
revoked “in full,” and the time to be served upon revocation would “run
concurrent” with the sentence imposed for his 2000 convictions. According to
Kevin, however, there is “no other specific evidence” regarding how much time he
actually served in prison as a result of his 1995 cocaine-possession conviction, and
absent “specific information” regarding “the exact amount of time served”
following the April 2000 revocation, “it is impossible to know how many criminal
history points should be assessed.”
We need not address these arguments, however, because even had the
Government failed to establish that the balance of Kevin’s 1995-imposed probation
exceeded one year and one month at the time of the April 2000 revocation, the
resulting error was harmless, as Kevin’s Guidelines imprisonment range would
remain unchanged. Kevin does not dispute that he was confined for 60 days
20
following a 1996 revocation of his 1995-imposed probation. And, pursuant to
§ 4A1.1(b), the district court must assign two criminal history points for each prior
sentence of imprisonment of at least 60 days. U.S.S.G. § 4A1.1(b). Thus, even
excluding the April 2000 revocation, the 60 days of imprisonment Kevin served
pursuant to the 1996 revocation would result in the assessment of two criminal
history points. Kevin would therefore have 10 total criminal history points, which
would result in a criminal history category of V, as the district court determined.
See U.S. Sentencing Guidelines Manual, ch. 5, pt. A (2006) (Sentencing Table).
As such, Kevin’s Guidelines imprisonment range would remain unchanged at 168
to 210 months. See id. Accordingly, even had the district court erred in assessing
three criminal history points for the 1995 cocaine-possession offense, the error was
harmless.
D. Reasonableness of Kevin’s Sentence
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005), sentencing requires two steps. “First, the district court must consult
the Guidelines,” which, “at a minimum, obliges the district court to calculate
correctly the sentencing range prescribed by the Guidelines.” United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). The district court must then
impose a sentence that is reasonable in light of the factors set forth in 18 U.S.C.
21
§ 3553(a). Talley, 431 F.3d at 788. These factors include: the nature and
circumstances of the offense, 18 U.S.C. § 3553(a)(1); the history and
characteristics of the defendant, id.; the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, and provide just
punishment for the offense, id. § 3553(a)(2)(A); the need for the sentence to afford
adequate deterrence, id. § 3553(a)(2)(B); the need to protect the public from further
crimes of the defendant, id. § 3553(a)(2)(B); and the Guidelines imprisonment
range, id. § 3553(a)(4)(A). Although sentencing courts must be guided by these
factors, the district court is not required to state on the record that it has explicitly
considered each of these factors or to discuss each of these factors. United States
v. Thomas, 446 F.3d 1348, 1357 (11th Cir. 2006). Moreover, “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court[,]” and “[w]e will not substitute our judgment in weighing the
relevant factors.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006)
(citations omitted).
Kevin argues that his sentence is unreasonable in light of Booker and § 18
U.S.C. § 3553(a) because “[a] substantially lesser sentence would definitely
comply with the purposes of sentencing and would be more than adequate to deter
22
this type of misconduct.”3 We disagree.
First, as we concluded above, the district court correctly calculated Kevin’s
Guidelines imprisonment range as 168 to 210 months. Moreover, noting “the
statutory factors set in 18 U.S.C. [§] 3553(a),” the court discussed Kevin’s history
of drug use, his past participation in drug sales, the death “ruse” he staged to evade
authorities, and the costs incurred by the Coast Guard during its efforts to search
for him upon receiving the false distress signal. Thus, it is clear that, in accordance
with Booker, the court discussed and considered Kevin’s history and
characteristics, see 18 U.S.C. § 3553(a)(1), the nature and circumstances of the
offense, see id., the seriousness of the offense, see id. § 3553(a)(2)(A), and the
need to afford adequate deterrence to criminal conduct, see id. § 3553(a)(2)(B).
And although a sentence within the Guidelines range is not per se reasonable,
when, as here, “the district court imposes a sentence within the advisory Guidelines
range, we ordinarily will expect that choice to be a reasonable one.”4 Talley, 431
3
Kevin also argues that the district court erred by denying his motion for a downward
departure because his criminal history score over-represents the seriousness of his criminal
history, and the Guidelines’ 100-to-1 ratio between crack and powder cocaine is unduly harsh.
Because nothing in the record suggests that the district court believed it lacked the authority to
downwardly depart, we lack jurisdiction to review the court’s refusal to do so. See United States
v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006); United States v. Winingear, 422 F.3d 1241,
1245 (11th Cir. 2005).
4
In this circuit, we do not presume that a sentence within the properly calculated
Guidelines range is reasonable. See United States v. Hunt, 459 F.3d 1180, 1185
(11th Cir. 2006). “Recently, however, the U.S. Supreme Court upheld other circuits’ decisions
affording such a presumption, noting that a sentence, independently calculated by the district
23
F.3d at 788. We therefore conclude that Kevin has failed to carry his burden of
establishing that the 188-month sentence is unreasonable.
E. Upward Departure
Lavonnia argues that the district court erred by failing to give her notice that
it was contemplating an upward departure before imposing sentence. Because
Lavonnia did not raise this argument to the district court, we review it for plain
error. See Shelton, 400 F.3d at 1328. Under the plain error standard, Lavonnia
must show (1) error, (2) that is plain, (3) that affects her substantial rights, and
(4) that “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1329.
Rule 32(h) of the Federal Rules of Criminal Procedure requires the district
court to give the parties “reasonable notice that it is contemplating a departure”
from the applicable sentencing range “on a ground not identified for departure
either in the presentence report or in a party’s prehearing submission. . . .” Fed. R.
Crim. P. 32(h). But this notice requirement does not apply to a sentence outside of
the advisory Guidelines range as a result of the district court’s imposition of a
court in accordance with Booker, that falls within the properly calculated Guidelines range
‘significantly increases the likelihood that the sentence is a reasonable one.’” United States v.
Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007) (citing Rita v. United States, 551 U.S. ----, 127
S. Ct. 2456, 168 L. Ed. 2d 203 (2007)). “We recognize that the Court’s rationale in Rita calls into
question our reasons for not affording a presumption of reasonableness.” Id. at 1314 n.8
(contrasting Rita, 127 S. Ct. at 2463-67, with Hunt, 459 F.3d at 1185).
24
variance in light of the factors set forth in 18 U.S.C.§ 3553(a). United States v.
Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006), petition for cert. filed, (U.S. Oct.
26, 2006) (No. 06-7517). To that end, in Irizarry, this court held that “[a]fter
Booker, parties are inherently on notice that the sentencing guidelines range is
advisory” and “cannot claim unfair surprise or inability to present informed
comment . . . when a district court imposes a sentence above the guidelines range
based on the section 3553(a) sentencing factors.” Id.
Here, it is clear that the district court did not impose a Guidelines
“departure,” rather, the court imposed a variance—an above-the-Guidelines
sentence based upon its consideration of the factors set forth in § 3553(a). First,
the district court did not cite to a specific Guidelines departure provision. See
United States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir.), cert. denied, --- U.S.
----, 127 S. Ct. 251, 166 L. Ed. 2d 196 (2006). Second, during the sentencing
hearing, the district court’s discussion of Lavonnia’s “egregious” act of requesting
“more money to further a search that she knew” to be “bogus from the outset,”
even though she “had considerably above-average earnings” indicates that the
court considered the nature and circumstances of the offense, see 18 U.S.C.
§ 3553(a)(1), and Lavonnia’s history and characteristics, see id. The court also
stated that Lavonnia’s “conduct in this instance merits that extra six months”;
25
Lavonnia had received a “great benefit” from her plea agreement because
restitution could not be ordered to the Coast Guard “for criminal conduct in which
[Lavonnia] played a significant part”; and “the advisory guidelines range” is
“substantially lower” than had Lavonnia been convicted of all counts in the
indictment. The court also noted that the statutory maximum sentence for
Lavonnia’s offense is five years’ imprisonment. These statements demonstrate that
the court considered the seriousness of Lavonnia’s offense, see id. § 3553(a)(2)(A),
and the advisory Guidelines range, see id. § 3553(a)(4). Thus, rather than impose a
Guidelines departure, the district court exercised its post-Booker discretion to
impose a reasonable sentence outside the Guidelines range because it concluded
that a sentence inside of that range was inadequate. Because the district court did
not impose a Guidelines departure, it was under no obligation to give Lavonnia
advance notice under Rule 32(h). See Irizarry, 458 F.3d at 1212.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the sentences.
26