US v. Desmond Garrett, No. 09-4283 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4283 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DESMOND LAMONT GARRETT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00175-FL-1) Submitted: March 30, 2010 Before WILKINSON and Senior Circuit Judge. NIEMEYER, Decided: Circuit Judges, June 4, 2010 and HAMILTON, Affirmed in part; dismissed in part by unpublished per curiam opinion. Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Desmond Lamont Garrett pled guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d) (2006), and was sentenced to a term of 150 months imprisonment, which was an upward departure from the guideline range pursuant to U.S. Sentencing Guidelines Manual § 4A1.3, p.s. contending that sentence. He (2008). the also Garrett departure seeks to appeals resulted challenge in the an his sentence, unreasonable district court s enhancement of his offense level for physical restraint of a person during the robbery commission of the robbery. government asserts that and in the USSG §§ 2B3.1(b)(4)(B), 3B1.4. The these for use claims of a should minor be dismissed because, under the terms of his plea agreement, Garrett waived the right to raise on appeal any issues relating establishment of the advisory guideline range. to the We affirm in part and dismiss in part. Before Garrett was sentenced, the government moved for an upward departure under § 4A1.3(a)(1), arguing that category III seriously under-represented the seriousness of Garrett s criminal history or the likelihood that he would commit further crimes. Information in the presentence report disclosed that Garrett had a prior federal conviction for armed bank robbery. While serving his sentence, he incurred fifty-five disciplinary infractions, including multiple 2 infractions for each of the following: injury; possession of a dangerous weapon; threatening bodily assault without serious injury; interfering with security devices; refusing to obey an order; refusing to take a drug test; destruction of possession of intoxicants. while he was on property; setting fires; and Within six months of his release, supervised release, Garrett committed the adopted the instant offense, another armed bank robbery. At sentencing, the district court probation officer s recommendation for a total offense level of 29, which included increases for physical restraint of several victims during accomplice. placed him the robbery Garrett had in criminal and six for use criminal history a history category guideline range was 97-121 months. of III. minor points, The as an which advisory The court decided that a departure was justified because a sentence within the guideline range was insufficient to protect the public, given Garrett s high likelihood of recidivism. The court focused on Garrett s prior federal conviction for armed bank robbery, the fifty-five infractions he incurred while serving his prior sentence, many of which the court found were for prior similar conduct, and the relatively short time he spent on supervised release before he committed the instant offense. The court also decided that Garrett was in need of mental health treatment and intensive drug treatment. The court determined 3 that a departure to category IV would be insufficient, and departed to category V, which yielded a guideline range of 130-162 months. The court selected a mid-range sentence of 150 months. We review a sentence for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). requires This review consideration of both procedural and substantive reasonableness of a sentence. We first determine whether the district court the Id. properly calculated the defendant s advisory guideline range, considered the § 3553(a) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). the If no significant procedural error is found, we review substantive reasonableness of the sentence, taking into account the totality of the circumstances, including the extent of any variation from the Guidelines range. Gall, 552 U.S. at 51. Garrett states that he does not dispute the extent of the departure, but contends that the district court s basis for a departure was unjustified--a procedural error. He asserts incorrectly that the court s only basis for departing was the inadequacy of his criminal history. In fact, the court relied on the need to protect the public because of the likelihood that Garrett would commit future crimes. 4 Garrett also argues that the district court s consideration of his prison infractions rendered the departure unreasonable because they are not the equivalent of crimes. However, we have previously approved the consideration of prison infractions as evidence of a likelihood of recidivism. (4th Cir.) tendency See United States v. Heath, 559 F.3d 263, 266-67 (departure toward justified recidivism, by evidence including cert. denied, 559 F.3d 263 (2009). prison of defendant s infractions), Last, Garrett argues that the district court abused its discretion to the extent that it based the departure on his uncounted juvenile adjudications. This claim is meritless because the district court did not rely on Garrett s juvenile record when it explained the basis for the departure. Garrett also contends that the district court failed to correctly calculate his guideline range. However, Garrett is foreclosed from raising this issue because, under the terms of his plea agreement, he waived his right to appeal any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal a sentence above the guideline range. In this appeal, Garrett does not attempt to argue that the waiver is not enforceable; indeed, he does not address the waiver at all. that the waiver was Our review of the record discloses knowing and enforceable. 5 intelligent, and is thus We significant conclude that procedural Garrett error. The has not identified any court did not the select sentence based on clearly erroneous facts or improper criteria and it considered the § 3553(a) factors, in particular the need to protect the public, but also the nature and circumstances of the offense and the need to provide Garrett with needed medical care. The court considered whether a sentence within criminal history category IV would be adequate and decided that it would not. Taking into account the totality of the circumstances and giving due deference to the district court s decision that the § 3553(a) factors, variance, Gall, sentence was district court on 522 not a whole, U.S. at 51, substantively did not justify we are the extent its the that the Therefore, the satisfied unreasonable. abuse of discretion in sentencing Garrett. We therefore district court. Garrett challenges and materials legal before the sentence imposed by the We dismiss that portion of the appeal in which guideline range. facts affirm the district court s calculation of the We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 6

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