United States v. Marion Yarbrough ( 2009 )


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  •                                                           [DO NOT PUBLISH]
    
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE ELEVENTH CIRCUIT
                            ________________________                 FILED
                                                            U.S. COURT OF APPEALS
                                  No. 08-15577                ELEVENTH CIRCUIT
                                                                  JUNE 22, 2009
                              Non-Argument Calendar
                                                               THOMAS K. KAHN
                            ________________________
                                                                    CLERK
    
                        D. C. Docket No. 07-80099-CR-KAM
    
    UNITED STATES OF AMERICA,
    
    
                                                                    Plaintiff-Appellee,
    
                                       versus
    
    MARION YARBROUGH,
    a.k.a. Blockburnal,
    
                                                              Defendant-Appellant.
    
    
                            ________________________
    
                     Appeal from the United States District Court
                         for the Southern District of Florida
                           _________________________
    
                                   (June 22, 2009)
    
    Before CARNES, HULL and WILSON, Circuit Judges.
    
    PER CURIAM:
    
         After pleading guilty, Marion Yarbrough appeals his 480-month sentence,
    for transporting a minor in interstate commerce for the purpose of engaging in
    
    sexual activity, in violation of 18 U.S.C. §§ 2423(a) and 2. After review, we
    
    affirm.
    
                                    I. BACKGROUND
    
    A.    Offense Conduct
    
          Using a screen name, Yarbrough communicated with a fifteen-year-old girl
    
    via the Internet and cellular telephone. Yarbrough told the girl that he was 21
    
    years old (when in fact he was 34 years old). Yarbrough told the girl he loved her
    
    and repeatedly asked the girl to visit him in Kentucky. The girl, who was having
    
    problems at home, eventually agreed and, through an intermediary, Yarbrough
    
    purchased her a bus ticket.
    
          On April 24, 2007, the girl followed Yarbrough’s instructions and boarded a
    
    bus in West Palm Beach, Florida and debarked in Nashville, Tennessee, where
    
    Yarbrough met her. Yarbrough then drove the girl to his house in Kentucky.
    
          Over the next fifteen days, Yarbrough engaged in sexual intercourse with the
    
    girl, including vaginal, anal and oral sex, and used force on at least one occasion.
    
    These sexual encounters occurred twice per day on all but a couple of the days they
    
    were together. Yarbrough did not wear a condom and told the girl he wanted to get
    
    her pregnant, despite her objections.
    
    
    
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          The girl’s mother reported her missing to the Federal Bureau of
    
    Investigation (“FBI”). Working with law enforcement in Palm Beach County and
    
    Kentucky, the FBI eventually located the girl, who indicated that Yarbrough had
    
    fled on foot. Yarbrough was found during a search of the area.
    
          In an interview with police, the girl said that she felt forced and intimidated
    
    into the sexual encounters, which were painful. Although the girl told Yarbrough
    
    it was painful and to stop, he did not. She also put her thighs together to try to stop
    
    Yarbrough, who told her to open her legs or it would hurt worse. A subsequent
    
    gynecological exam was consistent with forced and repeated sexual activity.
    
    B.    PSI
    
          The pre-sentence investigation report (“PSI”) recommended the following:
    
    (1) a base offense level of 30, pursuant to U.S.S.G. § 2A3.1(a)(2); (2) a four-level
    
    increase, pursuant to U.S.S.G. § 2A3.1(b)(1), because the offense involved conduct
    
    described in 18 U.S.C. § 2241(a) or (b) (the aggravated sexual abuse statute); (3) a
    
    two-level increase, pursuant to U.S.S.G. § 2A3.1(b)(4), because the victim
    
    sustained serious bodily injury; (4) a two-level increase, pursuant to U.S.S.G. §
    
    2A3.1(b)(2)(B), because the victim was over 12 but less than 16 years old; and (5)
    
    a two-level increase, pursuant to U.S.S.G. § 2A3.1(b)(6)(B), because the offense
    
    involved the use of a computer or an interactive computer service. These
    
    
    
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    enhancements resulted in a total offense level of 40.
    
          However, the PSI also concluded that Yarbrough was a career offender,
    
    pursuant to U.S.S.G. § 4B1.1, because he had two prior felony convictions under
    
    Kentucky law for fleeing or evading the police in the first degree. Because the
    
    statutory maximum penalty for Yarbrough’s offense was life imprisonment,
    
    Yarbrough’s status as a career offender gave him an offense level of 37 under the
    
    guidelines. See U.S.S.G. § 4B1.1(b)(A). After a three-level reduction for
    
    acceptance of responsibility, the PSI calculated an adjusted offense level of 34.
    
    With a criminal history category of VI, the PSI recommended an advisory
    
    guidelines range of 360 months’ to life imprisonment.
    
          In addition to Yarbrough’s two felony fleeing and evading police
    
    convictions, the PSI reported the following criminal history: (1) a 1991 assault
    
    charge in which Yarbrough was charged with digitally penetrating the vagina of a
    
    minor; (2) a 1994 conviction for contributing to the delinquency of a minor; (3) a
    
    1995 conviction for statutory rape of a 13-year-old girl; and (4) several convictions
    
    between 1993 and 2005, including driving under the influence, driving with a
    
    suspended license and assault. In addition, the PSI reported that, in May 2007,
    
    Yarbrough was arrested for the rape of a 12-year-old girl and that the charges
    
    remained pending in Kentucky.
    
    
    
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          Yarbrough objected to the PSI challenging the four-level aggravated sexual
    
    abuse increase, the two-level serious bodily injury increase and his designation as a
    
    career offender. Before sentencing, the parties entered into an agreement whereby
    
    Yarbrough agreed to withdraw his objection to the four-level aggravated sexual
    
    abuse increase and the government agreed not to seek the two-level serious bodily
    
    injury increase. However, the parties continued to dispute whether Yarbrough was
    
    a career offender.
    
    C.    Sentencing
    
          The district court accepted the parties’ sentencing agreement, which reduced
    
    Yarbrough’s offense level from 37 to 35, giving him a revised advisory guidelines
    
    range of 292 to 365 months’ imprisonment. Yarbrough formally withdrew his
    
    career-offender objection, which the district court accepted after confirming with
    
    Yarbrough that he was withdrawing that objection knowingly and voluntarily, as
    
    follows:
    
                 MR. METZ:          I’ve spent a considerable amount of time
          yesterday and today researching and speaking with both Probation and
          the Government, and met with Mr. Yarbrough prior to this hearing,
    and I’m happy if the Court wants to inquire, but Mr. Yarbrough hereby withdraws
    any objection to him being characterized as a career criminal offender.
                 In particular, just so the record’s clear, there were two separate
          indictments that did allege what Florida law and the Eleventh Circuit
          has interpreted under fleeing and evading as being violent crimes,
          which would be the elements necessary for the enhancement here.
                 There’s an issue about a collateral attack on the Kentucky
    
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          statute. I have discussed that with Mr. Yarbrough. After doing so, he,
          however, agrees that he is in fact and should be characterized as a
          career criminal offender, and we would withdraw any objection
          otherwise.
                 THE COURT: All right. Mr. Yarbrough, it that correct, that
          you’ve discussed this other issue with your attorney that’s not
          contained in that sentencing agreement we just talked about, and you
          understand that you are withdrawing your objections to being
          categorized as a career offender?
                 THE DEFENDANT: Yes, sir.
                 THE COURT:          And have you done that willingly and
          voluntarily?
                 THE DEFENDANT: Yes, sir.
                 THE COURT: And did you understand all the issues after discussing
          them with your attorney?
                 THE DEFENDANT: Yes, sir.
                 THE COURT: Okay. And were you under the influence of any
          drugs, medicine or alcohol at the time that you were having these
          discussions with your attorney?
                 THE DEFENDANT: No, sir.
                 THE COURT: I’m going to find that he’s withdrawn that
          objection, as well.
    
          The district court heard statements from the victim and her mother, who
    
    described the effect that Yarbrough’s actions had on their lives. Among other
    
    things, the victim described the fear and pain she experienced during the ordeal and
    
    how she had resorted to drugs and alcohol as a means to escape. She also stated
    
    that she now has nightmares, panic attacks and suicidal thoughts and that she has
    
    sought counseling from a therapist.
    
          In accordance with its obligations under the plea agreement, the government
    
    recommended a sentence at the low end of the advisory guidelines range.
    
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    Yarbrough also requested a sentence at the low end of the range, emphasizing that
    
    he and the prosecutor had arrived at this joint recommendation after several months
    
    of close consideration and negotiation. Yarbrough then personally addressed the
    
    district court and briefly apologized to the victim and her family.
    
          The district court prefaced its sentence by explaining that, although it
    
    normally deferred to the sentencing agreements reached by parties, it could not do
    
    so in light of its consideration of the factors in 18 U.S.C. § 3553(a). The district
    
    court emphasized that Yarbrough’s offense was “disturbing” and “about as serious
    
    . . . [as] we can deal with short of death,” that Yarbrough had a history of sexually
    
    deviant behavior with respect to minors, and that its sentence had to account for
    
    “the harm to the victim, her family and to society at large” and provide Yarbrough
    
    with much-needed correctional treatment “to deal with his deviant behaviors.” The
    
    court also noted that it had to “impose a sentence that [would] avoid unwarranted
    
    sentencing disparities among defendants with similar records.” After confirming
    
    that it had considered the statements of the parties, the PSI, the advisory guidelines
    
    range and the § 3553(a) factors, the court imposed an upward variance to 480
    
    months’ imprisonment. Yarbrough filed this appeal.
    
                                      II. DISCUSSION
    
          On appeal, Yarbrough argues that his 480-month sentence is unreasonable.
    
    
    
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    We review the reasonableness of a sentence for abuse of discretion using a two-
    
    step process. United States v. Pugh, 
    515 F.3d 1179
    , 1190 (11th Cir. 2008). First,
    
    we look at whether the district court committed any significant procedural error
    
    and then whether the sentence is substantively reasonable under the totality of the
    
    circumstances. Id. The party challenging the sentence bears the burden to show it
    
    is unreasonable in light of the record and the § 3553(a) factors. United States v.
    
    Thomas, 
    446 F.3d 1348
    , 1351 (11th Cir. 2006).1 “Sentences outside the guidelines
    
    are not presumed to be unreasonable, but we may take the extent of any variance
    
    into our calculus.” United States v. Shaw, 
    560 F.3d 1230
    , 1237 (11th Cir. 2009).
    
           In his reply brief, Yarbrough argues for the first time that his sentence is
    
    procedurally unreasonable because the district court erroneously classified him as a
    
    career offender. However, a knowing and affirmative withdrawal of a previously
    
    articulated objection constitutes a waiver that precludes appellate review of the
    
    alleged error, and the plain error doctrine is inapplicable. See United States v.
    
    Horsfall, 
    552 F.3d 1275
    , 1283-84 (11th Cir. 2008), cert. denied, 
    129 S. Ct. 2034
    
    
    
           1
             The § 3553(a) 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 needed
    educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
    Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
    the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
    victims. 18 U.S.C. § 3553(a).
    
                                                      8
    (2009); United States v. Masters, 
    118 F.3d 1524
    , 1526 (11th Cir. 1997).
    
    Yarbrough affirmatively, voluntarily and unequivocally withdrew his career-
    
    offender objection at sentencing. Thus, we decline to address this career offender
    
    argument.
    
           Apart from his challenge to his career-offender status, Yarbrough does not
    
    take issue with the district court’s guidelines calculations. Nor does Yarbrough
    
    raise any other procedural error. Rather, Yarbrough argues that the district court’s
    
    decision to exceed the advisory guidelines range was substantively unreasonable.
    
           We cannot say that the district court abused its discretion in imposing a 480-
    
    month sentence, above the advisory guidelines range. The district court stated that
    
    it had considered the parties’ statements, the PSI, the advisory guidelines range and
    
    the § 3553(a) factors. As the district court noted, Yarbrough’s crime was
    
    especially egregious. Yarbrough lured a vulnerable young girl from her home and
    
    took her to another state where, through force and threats, he subjected her to
    
    repeated, painful sexual intercourse almost twice daily for over two weeks. In
    
    doing so, Yarbrough did not use a condom and told his victim he was trying to
    
    impregnate her.2 As reflected in the statements by the victim and her mother,
    
    
    
           2
             The PSI noted that Yarbrough has fathered seven children and that, based on the ages of
    the children and their mothers reported by Yarbrough, some of the mothers appeared to have
    been minors when the children were conceived.
    
                                                    9
    Yarbrough’s conduct has inflicted significant and long-lasting harm. Further,
    
    Yarbrough has a history of sex offenses involving minors and, at the time of
    
    sentencing, faced new charges of raping a 12-year-old girl in Kentucky.
    
          Yarbrough’s claim that the district court failed to adequately consider the
    
    need to avoid unwarranted sentencing disparities is not supported by the record.
    
    The district court explicitly acknowledged this factor at sentencing. Furthermore,
    
    the cases Yarbrough cites, United States v. Blas, 
    360 F.3d 1268
     (11th Cir. 2004),
    
    and United States v. Hersh, 
    297 F.3d 1233
     (11th Cir. 2002), are guidelines
    
    departure cases decided prior to United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
     (2005), and do not support the argument that the variance in this case is
    
    unreasonable. See Shaw, 560 F.3d at 1241 (rejecting a similar sentencing disparity
    
    argument). In any event, Yarbrough had a significant criminal history and indeed
    
    had a criminal history category of VI, while the defendants in Blas and Hersh each
    
    had a criminal history category of I. See Blas, 297 F.3d at 1271; Hersh, 297 F.3d
    
    at 1240. Thus, Yarbrough does not share a similar record to those defendants and
    
    has not shown any unwarranted disparity. See 18 U.S.C. § 3553(a)(6) (instructing
    
    courts to consider “the need to avoid unwarranted sentence disparities among
    
    defendants with similar records . . . ”).
    
          Given the totality of the circumstances, Yarbrough has not carried his
    
    
    
                                                10
    burden to show that the district court’s upward variance to 480-months from the
    
    advisory guidelines range of 292 to 365 months was unreasonable.
    
          AFFIRMED.
    
    
    
    
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