United States v. Roshaun Terry , 419 F. App'x 694 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2779
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Roshaun D. Terry, *
* [UNPUBLISHED]
Appellant. *
*
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Submitted: May 9, 2011
Filed: June 27, 2011
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Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
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PER CURIAM.
Roshaun D. Terry (Terry) pled guilty to aiding and abetting possession with
intent to distribute more than 50 grams of a mixture or substance containing cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 18 U.S.C. § 2.1 The
1
21 U.S.C. § 841(b)(1)(A)(iii) was amended pursuant to the Fair Sentencing
Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010), to replace 50 grams
with 280 grams of a mixture or substance containing cocaine base. This amendment
does not affect the present case, however, because Terry committed the crime at issue
in November 2009 and the Fair Sentencing Act is not retroactive. United States v.
Spires, 628 F.3d 1049, 1055 (8th Cir. 2011), cert. denied, 2011 WL 1456870 (U.S.
district court2 calculated Terry's advisory United States Sentencing Guidelines
(Guidelines) range at 262 to 327 months' imprisonment and imposed a below-
Guidelines sentence of 175 months' imprisonment, to be served consecutively to
Terry's undischarged state term of imprisonment. Terry appeals, asserting that his
sentence is substantively unreasonable. We affirm.
Following Terry's arrest for the instant offense, Terry, with the aid of a state
public defender, pled guilty in state court to petitions to revoke (PTRs) parole and a
suspended state sentence. Later, Terry pled guilty to the instant federal drug offense
and the federal district court imposed a 175-month sentence, to be served
consecutively to his state term of imprisonment. Now, Terry asserts that his sentence
is unreasonable because (1) it is consecutive to his undischarged state term of
imprisonment; and (2) it is greater than necessary to accomplish the sentencing goals
in 18 U.S.C. § 3553(a).
Commingled with Terry’s challenges is his contention that the state public
defender rendered ineffective assistance by failing to inform Terry before he pled
guilty to the PTRs that the federal district court could later impose a consecutive
sentence. But, "the fact that a defendant received ineffective assistance of counsel
does not speak to . . . the factors a court must consider when imposing a sentence."
United States v. Young, 315 F.3d 911, 915 (8th Cir. 2003); see also United States v.
Crippen, 961 F.2d 882, 885 (9th Cir. 1992) ("The receipt of ineffective assistance of
counsel [in a prior state court proceeding] is simply not a 'mitigating or aggravating'
circumstance or otherwise a sentencing factor pursuant to § 3553(a)."). And, to the
extent that Terry attempts to collaterally attack his state court convictions on the basis
of ineffective assistance of counsel, his attack is foreclosed by our precedent. United
May 16, 2011).
2
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
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States v. Toledo, 70 F.3d 988, 989 (8th Cir. 1995) (per curiam); United States v.
Jones, 28 F.3d 69, 70 (8th Cir. 1994) (per curiam).
We review the district court’s decision to impose a consecutive sentence for
reasonableness. United States v. McDonald, 521 F.3d 975, 980 (8th Cir. 2008). We
note that Application Note 3(C) to Guideline § 5G1.3(c) "recommends that the
sentence for the instant offense be imposed consecutively to the sentence imposed for
[a state probation, parole, or supervised release] revocation." But, even if the
Guidelines did not recommend a consecutive sentence here, "the district court has
broad statutory authority, pursuant to 18 U.S.C. § 3584, to impose consecutive
terms." United States v. Lone Fight, 625 F.3d 523, 525 (8th Cir. 2010), cert. denied,
2011 WL 1456844 (May 16, 2011). To determine whether sentences should run
consecutively or concurrently, 18 U.S.C. § 3584(b) requires district courts to
"consider, as to each offense for which a term of imprisonment is being imposed, the
factors set forth in section 3553(a)." Here, the district court expressly considered the
§ 3553(a) factors, noted Terry’s "three serious, serious convictions in the state
system," and emphasized the fact that Terry had "received . . . not much more than
slaps on the wrists for those" convictions. We conclude that the district court’s
decision to impose a consecutive sentence was not unreasonable.
Finally, we review Terry’s substantive unreasonableness challenge under a
deferential abuse-of-discretion standard. United States v. Lazarski, 560 F.3d 731,
733 (8th Cir. 2009). Where, as here, the district court imposes a below-Guidelines
sentence, "it is nearly inconceivable that the court abused its discretion in not varying
downward still further." Id. The record reveals that the district court properly
considered the § 3553(a) factors, and we find no abuse of discretion.
For the foregoing reasons, we affirm.
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