United States v. Basil Soloman , 550 F. App'x 86 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-4016
_____________
UNITED STATES OF AMERICA
v.
BASIL SOLOMAN, a/k/a Bruce Robinson,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 2-11-cr-00032-002)
District Judge: Honorable Juan R. Sanchez
Submitted under Third Circuit LAR 34.1(a)
on October 17, 2013
(Opinion filed: November 13, 2013)
Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges
*Honorable Kermit V. Lipez, , Senior United States Circuit Judge for the First
Circuit, sitting by designation.
OPINION
RENDELL, Circuit Judge:
Defendant Basil Soloman appeals the District Court’s judgment of sentence for
conspiracy to commit robbery, robbery, and for using and carrying a firearm during and
in relation to a crime of violence. For the following reasons, we will affirm the judgment
entered by the District Court.
I. 1
We write principally for the benefit of the parties and therefore recount only the
facts essential to our review.
On October 19, 2011, following a three-day trial, a jury found Basil Soloman
guilty of conspiracy to commit robbery, in violation of 18 U.S.C. §§ 1951(a) and (2);
robbery, in violation of 18 U.S.C. §§ 1951(a) and (2); and of using and carrying a firearm
during a crime of violence, in violation of 18 U.S.C. §§ 924(c) and (2).
The PSR stated that Soloman’s base offense level was twenty and placed him in
Criminal History Category III. Soloman’s seven juvenile adjudications were not
considered in this calculation. Pursuant to the PSR, the guidelines called for a total range
of 125 to 135 months imprisonment. In preparation for sentencing, the government
moved for upward departure under U.S.S.G. § 4A1.3, from a Category III criminal
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
history to a Category IV, urging that Category III did not adequately reflect the
seriousness of his criminal history. The government also moved for the same change in
Category as an upward variance under the § 3553(a) factors, as an alternative. Soloman
moved for a downward departure based on his allegedly traumatic childhood and his
mother’s illness.
At sentencing on October 18, 2012, the District Court found an upward departure
warranted, as “Mr. Soloman’s criminal history category fails to adequately reflect, one,
the seriousness of his criminal conduct, and two, the strong likelihood that he will
commit more crimes in the future.” (App. at 110). This determination was based on: (1)
Soloman’s two most recent juvenile convictions, committed at age seventeen, for
terroristic threats and robbery of a motor vehicle 2; (2) his adult conviction for aggravated
assault and related offenses, in which he shot the victim; (3) his lengthy institutional
record in prison between 1999 and 2008; (4) the two arrests detailed on the PSR, which
occurred while Soloman was on parole for his adult conviction, but before the instant
crime; and (5) his failure to adhere to the conditions of his parole. (App. 111 – 113).
The District Court emphasized that “the only break in [Soloman’s] criminal
activity happened . . . [when] he was in custody serving a sentence. . . [And even so,] his
institutional record . . . shows misconduct after misconduct. . . . .” (Id. at 111 – 112).
2
The District Court discussed all seven of Soloman’s juvenile convictions. However, in
evaluating the government’s motions for upward departure, or alternatively upward
variance, the District Court found it “appropriate to consider, at the least, the two
convictions [he received] . . . when he was seventeen years old.” (App. at 113.) These
convictions were for terroristic threats for which he was committed to juvenile detention,
and robbery of a motor vehicle, for which he was placed on probation. (PSR at 10).
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The Court determined that because Soloman “has demonstrated, consistently, a disregard
for the law and failed to abide by the conditions of supervision,” an upward departure
was appropriate. (Id. at 113-114).
The Court then ruled that the government’s second motion, for upward variance
under the § 3553(a) factors, would be granted in the alternative. (Id. at 115). The Court
based its analysis of the § 3553(a) factors on: (1) “[T]he fact that . . . [Soloman’s] prior
criminal record does not adequately account for his criminal history category”; (2)
Soloman’s personal characteristics, including his disregard for the law, his failure to
“comply with the conditions of court-imposed supervision” and his inability to adjust his
behavior to abide by the law; (Id. at 115); (3) the serious of the offense (Id. at 117); and
(4) the need to deter Soloman from engaging from criminal conduct in the future. (Id. at
119). The Court also observed that throughout the proceedings, Soloman behaved
arrogantly, disrespected the Court, and displayed a lack of remorse for his actions.
The Court determined that under either motion of the government, the most
appropriate criminal history categorization for Soloman was Category IV. (Id. at 120).
The judge then sentenced Soloman at the high end of the guidelines, namely, 147 months
imprisonment: 63 months on Counts 1 (conspiracy to commit robbery) and 2 (robbery),
followed by the 84-month mandatory consecutive sentence on Count 3 (using and
carrying a firearm during and in relation to a crime of violence).
The Court denied Soloman’s motion for downward departure. It acknowledged
that Soloman was “damaged” by his childhood exposure to domestic violence and
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physical abuse. (Id. at 116). However, the Court found a downward departure based on
Soloman’s childhood and family circumstances was unwarranted. (Id).
On appeal, Soloman first argues that the District Court erred by considering his
juvenile adjudications. However, at sentencing, Soloman conceded there was “no
question” the Court had authority to consider these adjudications. (Id. at 87). Soloman’s
only argument against an upward departure or variance concerned the circumstances of
his childhood. Thus, while Soloman claims the sentence should be reviewed for abuse of
discretion, because he failed to object to consideration of his juvenile adjudications, the
standard of review is plain error. Even under the more stringent standard, however, we
affirm the District Court’s sentence. Soloman also argues the sentence was substantively
unreasonable because the Court failed to adequately take into account his alleged
childhood trauma. We disagree, and affirm the District Court’s ruling in toto.
II.
a. Validity of Upward Departure/Upward Variance from Sentencing Guidelines.
Soloman first argues that the District Court sentence improperly used certain
juvenile adjudications to justify the upward departure or the upward variance. Soloman
argues that without the specific facts underlying the juvenile convictions, it is impossible
to know whether they were serious or similar, and that any consideration of these
convictions constitutes an abuse of discretion. We disagree.
“[I]f reliable information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s past criminal conduct or the
likelihood that the defendant will commit other crimes, an upward departure may be
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warranted.” 3 U.S.S.G. §4A1.3. This rule was designed to “provide flexibility in those
cases where a point-by-point calculation of the defendant’s criminal history category is
not alone sufficient to reflect his culpability and dangerousness.” U.S. v. Harris, 44 F.3d
1206, 1214 (3d Cir. 1995).
The District Court did not err in granting an upward departure. Soloman’s record
is clear and reliable: he was convicted of robbery of a motor vehicle on September 18,
1995 and of making terroristic threats on September 29, 1995. Pursuant to U.S.S.G.
§4A1.2 cmt. n. 8, such crimes were properly considered by the Court, as the juvenile
convictions of robbery and terroristic threats are serious and similar to the instant
offenses of robbery and conspiracy to commit robbery.
Additionally, the District Court explained that in granting the upward departure, it
was not relying on Soloman’s juvenile adjudications in isolation. Rather, the District
Court noted that the two convictions were the beginning of a pattern of criminal behavior
that only ceased when Soloman was incarcerated. Specifically, the Court found that
Soloman continually violated the terms of his probation, was arrested twice on probation,
and that he committed multiple infractions during his incarceration. Given such a record,
3
Soloman cites Berry and Warren as support for the contention that reliance on
convictions, without their factual background, is unreliable speculation. In Berry, the
District Court based its upward departure on arrests rather than convictions, but assumed
that “the defendants would have been convicted . . . absent ‘a breakdown in the state
court system.’” 553 F.3d at 280. This Court held such an assumption to be “unsupported
speculation about a defendant’s background.” Id. at 281. In Warren, reliance on a PSR
statement which was “by its own terms . . . unclear . . . whether [the defendant] was the
perpetrator or the victim of the frauds recited” was also considered improper speculation.
186 F.3d 358. Neither case is comparable to Soloman’s situation. There was no
unsupported speculation about whether Soloman committed any of the crimes at issue; he
had been convicted of and sentenced on all the crimes discussed.
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it was reasonable for the District Court to conclude that Criminal History Category III,
which only considered Soloman’s one aggravated assault conviction, significantly under-
represented the seriousness of his criminal past and his threat to the public.
As we agree with the upward departure, we need not address the alternative
upward variance imposed. We conclude that the District Court provided a thorough,
individualized assessment of the relevant sentencing factors in granting an upward
departure.
b. The Reasonableness of the Sentence
Soloman also argues that the sentence was substantively unreasonable because the
District Court denied his motion for downward departure. Specifically, he claims the
Court did not “adequately take into account the damage that [he] suffered as a result of
severe childhood trauma and abuse.” (App. Br. at 22). 4 We disagree.
A District Court’s sentence may not be reversed based on “the fact that [an]
Appellate Court might reasonably have concluded that a different sentence was
appropriate.” Gall v. U.S., 552 U.S. 38, 51 (2007). Likewise, a District Court’s sentence
is not rendered unreasonable for “failure to give mitigating factors the weight a defendant
contends they deserve.” U.S. v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007).
While the District Court recognized the difficult nature of Soloman’s childhood, it
reasonably concluded that his recidivist nature, his disregard for the law and others, his
4
To the extent that Soloman seeks review of the denial of the downward departure, this
Court lacks jurisdiction to review such a denial that was based on an exercise of
discretion. See U.S. v. Stevens, 223 F.3d 239, 247-48 (3d Cir. 2000) (holding that the
District Court’s denial of a downward departure was “an exercise of discretion and
therefore not reviewable”).
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lack of remorse for his actions, and his disrespect toward the Court all warranted an
enhanced sentence. The totality of the record does not justify a finding that the District
Court’s judgment of sentence was substantively unreasonable.
III.
Accordingly, we affirm the District Court’s judgment of sentence.
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