US v. DeWayne Blakeney, No. 11-4545 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4545 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEWAYNE JEMALE BLAKENEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (4:10-cr-00036-D-1) Argued: October 25, 2012 Decided: December 13, 2012 Before NIEMEYER, GREGORY, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Judge Gregory wrote a separate opinion concurring in the judgment. ARGUED: Mary Jude Darrow, Raleigh, North Carolina, for Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: On November 8, 2010, DeWayne Jemale Blakeney pleaded guilty to one count of manufacturing counterfeit federal reserve notes, in violation of 18 U.S.C. § 471. Blakeney now appeals his arguing sentence of unreasonable. 120 months imprisonment that it is For the following reasons, we affirm the district court s judgment. I. On May 6, 2009, Blakeney passed counterfeit currency at a Subway restaurant in Vanceboro, North Carolina, and was arrested the next day. On May 20, 2009, Nicki Nolder and Ashley Duzan passed counterfeit bills at a Walmart in Washington, North Carolina, and were also arrested. led to Blakeney, counterfeit King. currency Blakeney conduct. who In a admitted together was producing with cooperative two-count Further investigation again Noah and about Campbell admitted indictment $30,000 filed in and his in Thomas criminal the Eastern District of North Carolina on May 5, 2010, Blakeney was charged with counterfeiting and conspiracy to counterfeit. On November 8, 2010, he pled guilty to counterfeiting in violation of 18 U.S.C. § 471. In recommended the a base presentence offense report, level 2 of the 9 probation under U.S. officer Sentencing Guidelines ( USSG ) § 2B5.1(a), with a 4-level increase under subsection (b)(1)(B) for an offense involving $10,000-$30,000, and a further possessed increase counterfeiting 2B5.1(b)(2)(A), (b)(3). USSG § to 3B1.1(c) and offense level devices or 15 because Blakeney materials. See § With a 2-level role adjustment under a placed category officer Guidelines also range suggested As a result, 37-46 was that recommended of Blakeney had 15 criminal history points, which VI. total acceptance level was 14. advisory the for USSG in 3E1.1, reduction responsibility, him § 3-level months. the district his offense recommended The court probation consider an upward departure pursuant to USSG § 4A1.3 because category VI was inadequate to account for Blakeney s prior criminal record, including 28 prior convictions, 16 of which were unscored. Blakeney filed objections challenging the Guidelines computation, in which he mentioned as a factual objection that 10 of the 50 or so arrests listed in paragraph 42 of presentence report resulted from a failed relationship. United States pointing out moved that for an Blakeney, upward who departure was 38 under years § old, the The 4A1.3, had 28 criminal convictions between 1992 and 2009, most of which were for relatively minor crimes such as larceny, drug possession, trespassing, communicating threats, and driving offenses. However, Blakeney had one prior federal conviction for a crack 3 conspiracy and, after he served his federal sentence, he violated his supervised release and, therefore, his supervised release was revoked. The United States argued that category VI was an inadequate representation of Blakeney s criminal history, and that Blakeney was very likely to commit future crimes, thus making an upward departure appropriate. Blakeney in turn filed a requested sentencing memorandum in which he a downward departure to a sentence of 33 months, based on his concern that North Carolina had given him less credit than he deserved against his prior state sentences for his time in detention on state charges. When Blakeney was sentenced in May 2011, the district court overruled his objections to the presentence report. The United States asked for an upward departure to a sentence of 60 months. Defense counsel asked for a sentence at the top of the Guidelines range. The district court departed above category VI by increasing the offense level from 14 to 26, which produced a new Guidelines range of 120-150 months. In doing so, the district court stated that it was not required to discuss each offense level it rejected in the course of selecting the appropriate offense level, citing United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). In support of the offense level increase, the district court observed that but for the fact that some of Blakeney s 4 sentences were too old to be counted, he would have had 33 criminal history points, and that his 2004 federal sentence had been reduced from 140 months to 60 months -- after which he committed still more offenses. After factors and the considering advisory the 18 sentencing U.S.C. to pay restitution in the 3553(a) guidelines, court imposed a sentence of 120 months. Blakeney § the (2006) district The court also ordered amount of $1,330 businesses where he had passed counterfeit currency. to 11 The court noted that it had considered defense counsel s arguments for a lower sentence, including her assurances that Blakeney was ready to change his life and the fact that none of his co-defendants were prosecuted in federal court. Following the sentencing hearing, the court set out its findings and reasons for the upward departure in a written sentencing order. The district court explained: Blakeney stands before the court at 38 years of age with a long, profound, and disturbing criminal history. Blakeney is a recidivist s recidivist. . . . Blakeney s conduct reflects no respect for the law. Indeed, instead of rejecting a criminal lifestyle following his first federal conviction and incarceration, Blakeney violated his supervised release conditions by engaging in new felonious criminal conduct. Even after a revocation of his supervised release and additional incarceration, Blakeney returned to his criminal behavior by again possessing controlled substances and committing the instant offence. . . . Both specific and general deterrence are critical in this case, particularly given Blakeney s serious offense behavior, extensive 5 criminal record, performance while and near certain has long needed will receive it. lack of respect for the law, poor on probation or under supervision, likelihood of recidivism. Society protection from Blakeney and today United States v. Blakeney, No. 4:10-CR-36-D, 2011 WL 2118077, *5 (E.D.N.C. May 27, 2011). 1 Blakeney now appeals his sentence, arguing that it was unreasonable and an abuse of discretion by the district court. II. We review for reasonableness a sentence imposed by a district court, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). See In undertaking such a review, we must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines range. United States v. Diosdado Star, 630 F.3d 359, 363 (4th Cir. 2011) (internal quotation marks omitted). 1 The district court s written sentencing order is found at J.A. 139-161. Citations to the J.A. refer to the Joint Appendix filed by the parties in this appeal. 6 Absent a significant procedural error, our next step is to assess the substantive reasonableness of the sentence imposed. See id. In either event, a deferential abuse-of-discretion standard applies to any sentence, whether inside, outside, or significantly outside the Guidelines range. just United States v. Savillon Matute, 636 F.3d 119, 122 (4th Cir. 2011) (internal quotation marks omitted). The district court has flexibility in fashioning a sentence outside of the Guidelines range, and need only set forth enough to satisfy the appellate court that it has considered the parties arguments and has a reasoned basis for its decision. United States v. Diosdado- Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Rita v. United States, 551 U.S. 338, 356 (2007)). As the Supreme Court has cautioned, [t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate insufficient to justify reversal of the district court. is Gall, 552 U.S. at 51. Blakeney appears to argue that the district court erred when it departed upward from the advisory Guidelines range and because the extent of the departure was unreasonable. A district court may depart upward based upon the inadequacy of the defendant s indicates that substantially criminal the history defendant s under-represents 7 if reliable criminal the information history seriousness category of the defendant s criminal history or the defendant will commit other crimes. Blakeney contends that likelihood that the USSG § 4A1.3(a)(1). in deciding to depart, the district court failed to give due regard to several factors in reaching nature the of departure his decision, offense, the including alleged the disparity non-violent in treatment between himself and his coconspirators, his cooperation with the government, his record of minor offenses, and the misdemeanorcharacter of his recidivism. To the contrary, the district court properly considered each of these factors and rejected them. The district court found Blakeney repeatedly committed the serious counterfeiting offense, thereby victimizing multiple establishments. The district court also observed that Blakeney s criminal record was extraordinary, and that he was a recidivist s recidivist who repeatedly rejected living a crime-free lifestyle. (J.A.-I 114-15). These observations are readily supported by appellant s 16 unscored prior convictions. A sentencing court may consider unscored convictions in determining whether an upward departure is warranted. See United States v. Myers, 589 F.3d 117, 126 (4th Cir. 2009). The district court also found Blakeney had received lenient sentences on many prior occasions, [i]ncluding a lack of punishment sentences. for repeated (J.A.-I 94). violations of probationary The district court further stated 8 that, even were convictions and it not 10 consider arrests relationship, Blakeney staggering convictions 22 to that would and the stemmed still 40 seven from would arrests misdemeanor his have in 17 romantic amassed years adult, including over six years he spent incarcerated. 95). as a an (J.A.-I The court explained that it was only addressing Blakeney s arrests to respond to his objections to the Presentence Report. The district court correctly rejected appellant s disparate treatment from his accomplices. Withers, 100 Blakeney s F.3d claim 1142, that 1149 the (4th district claim of See United States v. Cir. court 1996). did not Moreover, factor his cooperation into its decision to depart is belied by the record. 2 The district court stated, I have considered your counsel s argument about account. Just punishment includes taking that into account and I have. court s your cooperation (J.A. 117). decision to and I've taken that into In view of the foregoing, the district depart upward was well-supported by the record. After properly calculating the advisory guideline range and giving the parties an opportunity to argue for an 2 Of note, Blakeney received a three point downward adjustment to his Guidelines calculation pursuant to USSG § 3E1.1: two points for acceptance of responsibility and one point for assisting authorities in the investigation and prosecution of his own misconduct. 9 appropriate sentence, a district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. Gall, 552 U.S. at 49-50. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the [departure]. departure, the court Id. at 50. considers When reviewing an upward whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the Villanueva, departure sentencing 473 F.3d should range. 118, be United 123 (4th supported justification than a minor one. States Cir. by a v. Hernandez- 2007). more [A] major significant Gall, 552 U.S. at 50. If a court provides an inadequate statement of reasons or relies on improper factors in imposing a sentence outside the properly calculated advisory sentencing range, the sentence will be found unreasonable and vacated. 123. the Hernandez-Villanueva, 473 F.3d at Whether a departure is upward or downward, [t]he farther [sentencing] court diverges from the advisory guideline range, the more a reviewing court must carefully scrutinize the reasoning offered by the district court in support of the sentence. United States v. Hampton, 441 F.3d 284, 288 (4th Cir. 2006). 10 Here, the district court determined the applicable sentencing range was 37 to 46 months, based on offense level 14 and criminal history category VI. It then concluded that an upward departure to offense level 26 adequately reflects the nature, number, and seriousness of Blakeney s prior convictions and the likelihood of Blakeney committing other serious crimes. (J.A.-I 147). level 26 Coupling criminal history category VI and offense yields imprisonment. a sentencing range of 120 to 150 months Blakeney was ultimately sentenced to 120 months, reflecting an upward departure of roughly 260%. 3 Explaining its rationale for the upward departure, the district court articulated the following facts: (1) Blakeney has a deeply troubling history of relentless criminal conduct in which he committed crimes for most of his adult life; (2) his criminal history convicted twice includes of over larceny 29 and convictions; seven times of (3) he was controlled substance offenses, including felonies; (4) but for the time period limitation limitation in in [USSG] [USSG section §]4A1.2(e) 4A1.1(c), and the four appellant s point criminal history points would have totaled an utterly staggering 33 points; (5) on many occasions, 3 The statute provides for imprisonment. 18 U.S.C. § 471. 11 Blakeney a 20-year received maximum lenient term of sentences, [i]ncluding a lack of punishment for repeated violations of probationary sentences; (6) he squandered the opportunity crack afforded him when conviction conspiracy to his was federal reduced sentence from 140 on a months imprisonment to 60 months imprisonment; (7) he pleaded guilty to seven charges that stemmed from his relationship with a former girlfriend, and that on one of those charges Blakeney resisted a law enforcement officer; and, (8) even if the district court ignored the seven misdemeanor convictions, appellant still would have amassed a staggering 22 convictions and 40 arrests in 17 years as an incarcerated. adult, over six of which were spent (J.A.-I 94-95). In addition, the district court considered the fact that Blakeney, in light of the entire record, was a recidivist for whom there was a near recidivism. (J.A.-I 95). certain likelihood of future The district court found specific deterrence of appellant was critical in this case because of his extraordinary criminal record, lack of respect for the law, and the certainty of recidivism. Where category VI is an upward (J.A.-I 116). departure warranted, a from sentencing criminal court must history depart incrementally, explaining the reasons for its departure. See U.S.S.G. § 4A1.3(a)(4)(B); United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). Even so, Section 4A1.3 s mandate to 12 depart incrementally does not, of course, require a sentencing judge to move only one level, or to explain its rejection of each and every intervening level . court need not incant the Id. Similarly, a sentencing specific language used in the guidelines, or 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. omitted). reasoned from Id. (internal quotation marks and citations It is enough that the district court employed a wellprocess the or, structure stated and otherwise, methodology calibrating its upward departures. to of have the extrapolated Guidelines in United States v. Rivera Santana, 668 F.3d 95, 104 (4th Cir. 2012). In this case, the district court s determination that an upward departure to 120 months imprisonment was compelled by Blakeney s supported criminal by the history record. and The the § 3553 district defendant s arguments and rejected them. factors court is well- considered the Its explanations for the sentence it imposed were sufficient to justify the extent of the departure, as described above. See United States v. Whorley, 550 F.3d 326, 339-42 (4th Cir. 2008) (upward departure 33% above advisory guidelines range amply supported by defendant s almost continuous pursuit of criminal conduct and its increasing risk to the public); United States v. Myers, 589 13 F.3d 117, 126 defendant s (4th criminal Cir. 2010) history, (upward including departure unscored based on convictions, and recidivism was reasonable); United States v. Evans, 526 F.3d 155, 158, 163-64, 166 (4th Cir. 2008) (upward departure reflecting more than a 300% deviation from advisory guidelines range supported recidivism, by lenient defendant s extensive punishments, and criminal substantial history of harm to utilize a victims). Even had the sentencing court failed to proper analysis for the upward departure, any such error would be harmless because the upward variance based on the § 3553(a) factors justified the sentence imposed. See United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008). 4 See also Rivera Santana, 668 F.3d at 104; United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009) (relying on district court s discussion of § 3553(a) factors to affirm sentence as reasonable variance). The district court expressly noted that it would have impose[d] the same sentence as a variance sentence for the reasons explained above, as well as for those noted during the 4 As this Court recently observed, the practical effects of applying either a departure or a variance are the same. Diosdado-Star, 630 F.3d at 365. See also Evans, 526 F.3d at 164 65. [T]he method of deviation from the Guidelines range whether by a departure or by varying is irrelevant so long as at least one rationale is justified and reasonable. DiosdadoStar, 630 F.3d at 365 14 sentencing hearing concerning section 3553(a). See Grubbs, 585 F.3d at 804 (concluding that variance sentence is procedurally reasonable [where] the district court adequately explain[s] its sentence factors). on alternative grounds by reference to § 3553(a) Our review of the district court s application of the § 3553(a) factors to Blakeney s circumstances persuades us that the variant sentence imposed upon him was not unreasonable. See Grubbs, 585 F.3d at 804 05; Gall, 552 U.S. at 51 (in reviewing a variance for reasonableness, an appellate court must give due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the extent of the variance ); United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007); Evans, 526 F.3d at 160. III. For the foregoing reasons, the judgment of the district court is AFFIRMED. 15 GREGORY, Circuit Judge, concurring in the judgment: I concur in the result reached by the majority, as it is the outcome militated by our precedent. I write separately, however, to lament on how formalistic and hollow our review of district court sentencing has become. While I recognize that the district court remains in the best position to decide the issue in question, Koon v. United States, 518 U.S. 81, 98 99 (1996) (quoting (1988)), curbed this to Pierce discretion achieve the consistent sentencing. v. Underwood, is not 487 without time-honored U.S. limits, objectives 552, and of 559-560 must fair be and See United States v. Booker, 543 U.S. 220, 263 264 (2005) (noting that, despite tension with the need to address individual circumstances, substantive review aims to avoid excessive sentencing disparities and iron out sentencing differences ). As I cautioned in United States v. Evans, 526 F.3d 155, 167 (4th Cir. 2008) (Gregory, J., concurring), the words abuse of discretion cannot be a legal incantation invoked by appellate courts to dispel meaningful substantive review of a district court s sentence. Yet, as recited by the majority, to depart from the guidelines, district court judges need only set forth enough to satisfy the appellate court that it has considered the parties arguments and has a reasoned basis for its decision. Ante at 7 (citing United States v. Diosdado16 Star, 630 F.3d 359, 364 (4th Cir. 2011)) (emphasis added). Thus, district court judges can render our review moot by simply providing a formulaic recitation of the 18 U.S.C. § 3553(a) factors, as well as reasons for their departure -- even if, for good reason, we explicitly disagree with them. With that said, I agree that Blakeney s remarkable criminal history justifies the district court judge s decision to depart in the instant case; however, such an extensive departure from both the sentencing guidelines and the government s recommendation should not go unobserved. In the case at hand, the district court sentenced Blakeney to ten years imprisonment -- despite the Government s request for only five years (which was already fourteen months in excess of the sentencing range s maximum). district court s reasoning could be extended Arguably, the to justify sentence up to the statutory maximum of twenty years. any Such uncertainty flies in the face of avoiding sentencing disparities and the general proposition of fairness. by Blakeney s counsel during oral As candidly indicated argument, uncertainty undermines an attorney s role as advocate, as it encumbers the ability to adequately prepare clients for sentencing, putting the attorney at risk of claims for ineffective assistance of counsel. 17 Overall, we cannot lose sight that appellate review of sentencing is becoming a mere formality, used by busy appellate judges only to ensure that busy district judges say all the right things when they explain how they have exercised their discretion. Going Booker, 543 U.S. at 313 (Scalia, J., dissenting). forward, district courts must be wary of departure, ensuring that non-guideline sentences are sufficient, but not greater than necessary to satisfy the purposes of § 3553(a)(2). In the same vein, our review must be given teeth to ensure that the discretion of district court judges - which is not absolute - remains subject to meaningful appellate review. 18

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