United States v. Lorenzo Pledger , 595 F. App'x 229 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO PLEDGER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever
III, Chief District Judge. (2:12-cr-00023-D-1)
Submitted: December 22, 2014 Decided: February 6, 2015
Before DUNCAN, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, Chapel Hill, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Pledger appeals the 216-month sentence imposed
following his guilty plea to one count of conspiracy to possess
with intent to distribute a quantity of cocaine, in violation of
21 U.S.C. §§ 841(b)(1)(C) and 846 (2012). Before this court,
Pledger asserts that the district court procedurally erred by
(1) departing upward under U.S. Sentencing Guidelines Manual
(“USSG”) § 4A1.3, p.s. (2013); and (2) granting a downward
departure under USSG § 5K1.1 but failing to state the extent of
the departure or to depart below Pledger’s guidelines range.
Pledger further asserts that these errors necessitate remanding
for resentencing because his sentence is substantively
unreasonable under the 18 U.S.C. § 3553(a) (2012) factors. We
disagree that resentencing is necessary, and affirm Pledger’s
sentence.
We review a sentence for reasonableness applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). We first review the sentence
for “significant procedural error,” including improper
calculation of the Guidelines range, insufficient consideration
of the § 3553(a) factors, and inadequate explanation of the
sentence imposed. Id. at 51. Any preserved claim of procedural
error is subject to harmlessness review. United States v. Lynn,
592 F.3d 572, 576 (4th Cir. 2010). “A Guidelines error is
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considered harmless if we determine that (1) the district court
would have reached the same result even if it had decided the
guidelines issue the other way; and (2) the sentence would be
reasonable even if the guidelines issue had been decided in the
defendant’s favor.” United States v. Gomez-Jimenez, 750 F.3d
370, 382 (4th Cir.) (internal quotation marks omitted), cert.
denied, 135 S. Ct. 305, 384 (2014).
Where the district court procedurally errs in its
Guidelines calculations but announces an alternative basis under
the § 3553(a) factors for the sentence it imposed, we must give
“due deference” to the district court’s § 3553(a) analysis. Id.
at 383. “When reviewing the substantive reasonableness of a
sentence, we examine the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” Id. (alteration and internal quotation marks
omitted).
Under USSG § 4A1.3(a)(1), a district court may depart
upward from a defendant’s Guidelines range “[i]f reliable
information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” Where, as here, a
defendant’s criminal history category is VI, “the court should
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structure the departure by moving incrementally down the
sentencing table to the next higher offense level in Criminal
History Category VI until it finds a guideline range appropriate
to the case.” USSG § 4A1.3(a)(4)(B); see also United States v.
Dalton, 477 F.3d 195, 199 (4th Cir. 2007). To satisfy this
requirement, a district court, however, “need not . . . go
through a ritualistic exercise in which it mechanically
discusses each criminal history category or offense level it
rejects en route to the category or offense level that it
selects.” Dalton, 477 F.3d at 199 (alterations and internal
quotation marks omitted).
First, Pledger argues that the district court failed
to apply an incremental approach when departing upward. The
record demonstrates, however, that the district court clearly
noted its responsibility under USSG § 4A1.3(a)(4)(B) and Dalton
to employ an incremental approach when departing. After
mentioning the possibility of raising Pledger’s offense level to
level thirty or thirty-one, the district court ultimately
determined that level thirty-two appropriately accounted for
Pledger’s under-represented criminal history. Finally, the
district court sufficiently justified the extent of its
departure by citing the violent nature of Pledger’s prior
offenses, the fact that Pledger did not take advantage of the
repeated leniency he received when sentenced in state court, and
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the high likelihood that Pledger would reoffend. See USSG
§ 4A1.3 cmt. background. Accordingly, the district court did
not procedurally err in determining the extent of its departure.
Second, Pledger argues that under USSG § 1B1.1(a)(6),
the district court erred by departing upward pursuant to USSG
§ 4A1.3(a) after adjusting Pledger’s total offense level and
Guidelines range based on Pledger’s career offender status under
USSG § 4B1.1. However, we have approved of a district court’s
ability to depart under USSG § 4A1.3 after adjusting a
defendant’s Guidelines range in accordance with USSG § 4B1.1.
See United States v. Munn, 595 F.3d 183, 188-89 n.8 (4th Cir.
2010) (“[A] sentencing court, after finding that the Career
Offender Provision overrepresented a defendant’s criminal
history, was free to depart [under USSG § 4A1.3] to a lower
level, a lower criminal history category, or both.”). In fact,
as the extent of a departure under USSG § 4A1.3 may be limited
by a defendant’s status as a career offender, see USSG
§ 4A1.3(b)(3)(A), it would be impossible to accurately depart
under USSG § 4A1.3 prior to determining whether a defendant is a
career offender for purposes of USSG § 4B1.1. Accordingly, the
district court did not procedurally err by departing under USSG
§ 4A1.3(a) after adjusting Pledger’s offense level pursuant to
USSG § 4B1.1.
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Whether the district court procedurally erred when
departing under USSG § 5K1.1 is a closer question. But even
assuming procedural error, we conclude that any such error was
harmless. See United States v. Hargrove, 701 F.3d 156, 161-62
(4th Cir. 2012); United States v. Savillon-Matute, 636 F.3d 119,
123-24 (4th Cir. 2011). Where a sentencing court “expressly
state[s] in a separate and particular explanation that it would
have reached the same result, specifically citing to Savillon-
Matute, Hargrove, and its review of the § 3553(a) factors,” it
is apparent that the court would have imposed the same sentence
absent the alleged error. Gomez-Jimenez, 750 F.3d at 383.
Here, the district court unquestionably announced an alternative
basis for its sentence pursuant to Savillon-Matute and Hargrove,
stating that even if it erred when calculating Pledger’s
Guidelines range, it would have imposed a 216-month sentence
under the § 3553(a) factors. Therefore, the first prong of the
harmless error test is satisfied and remand is only appropriate
if the sentence imposed is substantively unreasonable.
Pledger contends that his sentence is substantively
unreasonable because the district court over-emphasized his
criminal history in comparison to the other § 3553(a) factors.
We disagree.
“[D]istrict courts have extremely broad discretion
when determining the weight to be given each of the § 3553(a)
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factors.” United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.
2011). The district court acknowledged that Pledger was not a
“huge dealer” but placed more weight on the fact that Pledger
was “a relentless dealer” who “engaged, again, in a serious
criminal offense,” involving “very harmful substances.” In
imposing its sentence, the district court also relied on the
need to protect society from Pledger because he was “a very
violent, dangerous criminal” who would reoffend. Finally, the
court noted Pledger’s lack of respect for the law evidenced by
Pledger’s statement to the court.
The mere fact that the district court weighed
Pledger’s likelihood of recidivism and the need to protect the
public more heavily than other § 3553(a) factors does not render
the sentence substantively unreasonable. See United States v.
Rivera-Santana, 668 F.3d 95, 104-05 (4th Cir. 2012). The
district court did not abuse its discretion by imposing a 216-
month sentence under the § 3553(a) factors where, after
considering all the factors, it decided to focus on Pledger’s
likelihood of recidivism and the need to protect the public
given Pledger’s extensive criminal record, featuring twenty-four
years of serious offenses.
Because Pledger’s 216-month sentence is substantively
reasonable under the § 3553(a) factors, the second prong of the
harmless error test is satisfied. Accordingly, we affirm
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Pledger’s sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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