US v. Divine Reddick

Filing 920100616

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5219

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DIVINE JUSTICE REDDICK, 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-00130-FL-1)

Argued:

May 14, 2010

Decided:

June 16, 2010

Before MOTZ, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. MayParker, 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Unpublished opinions are not binding precedent in this circuit.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: In 2008, Divine Justice Reddick was convicted and sentenced in the Eastern District of North Carolina for two offenses

arising from his role in an armed bank robbery. two appellate challenges Reddick to his aggregate that, in

Reddick pursues sentence departing of 200

months.

First,

maintains

upward

based on the inadequacy of his criminal history category, the district court procedurally erred by failing to comply with

section 4A1.3 of the Sentencing Guidelines.

Second, Reddick

contends that the court substantively erred in departing upward to the sentence that it imposed. both contentions and affirm. As explained below, we reject

I. On May 15, 2008, Reddick was charged in a three-count

indictment with putting in jeopardy the life of another by using a dangerous weapon in a bank robbery, in contravention of 18 U.S.C. § 2113(d) (Count One); using and carrying a firearm

during and in relation to a crime of violence, in contravention of 18 U.S.C. § 924(c)(1)(A) (Count Two); and being a felon in possession § 922(g)(1) pleaded agreement of a firearm, Three). Counts One in On contravention September Two to 3, of 18 U.S.C. Reddick a plea in

(Count to

2008, to

guilty that

and

pursuant any

reserved his

right 2

appeal

sentence

excess of the advisory Guidelines range.

Pursuant to the plea

agreement, the prosecution dismissed Count Three. On December 4, 2008, Reddick's Presentence Investigation On

Report (the "PSR") was submitted to the district court.

Count One, the PSR recommended a Guidelines range of 51 to 63 months of imprisonment, predicated on a total offense level of 20 and a criminal history category of IV. With respect to Count

Two, the PSR recognized that the applicable Guidelines sentence was the statutory minimum consecutive term of 84 months. U.S.C. § 924(c)(1)(A)(ii); USSG § 2K2.4(b). In the "Impact of the Plea Agreement" section of the PSR, the probation officer explained that the prosecution's dismissal of Count Three significantly impacted Reddick's advisory See 18

Guidelines range.

Had Reddick been convicted on Count Three,

the PSR explained, "he would have been designated as an Armed Career Criminal and would be subject to a statutory penalty of [180 months] to Life on that count and his criminal history category would be VI rather than IV." J.A. 93. * Under that

scenario, Reddick would have been subject to (1) a Guidelines range of 70 to 80 months on Count One; (2) a consecutive 84month statutory minimum sentence on Count Two; and (3) a

Citations herein to "J.A. ___" refer to the Joint Appendix filed by the parties in this appeal.

*

3

concurrent 180-month statutory minimum sentence on Count Three. Thus, had he been convicted on Count Three, Reddick would have faced a statutory minimum of 264 months. Because Reddick's

advisory Guidelines range (51 to 63 months on Count One and a minimum of 84 months on Count Two) fell well below 264 months, the PSR specified that the district court "may wish to consider an upward departure pursuant to 4A1.3 (Departures Based on

Inadequacy of Criminal History Category) and 5K2.21 (Dismissed and Uncharged Conduct) based upon the dismissal of Count

[Three]."

Id. at 94.

At the sentencing hearing conducted in December 2008, the district court expressed concern with the discrepancy between the advisory Guidelines range calculated by the PSR and the

minimum of 264 months that would have accompanied a conviction on Count Three. when it agreed In response, the Government acknowledged that, to dismiss Count Three, it had miscalculated

Reddick's predicate convictions and did not recognize that he would have qualified as an armed career criminal had he been convicted on Count Three. that a within-Guidelines The prosecution maintained, however, sentence on Count One (51 to 63

months), plus 84 months on Count Two, would sufficiently serve the sentencing factors of 18 U.S.C. § 3553(a). Nevertheless, sentence, the of district an court imposed a 200-month of 116

consisting

above-Guidelines 4

sentence

months on Count One and a consecutive 84 months on Count Two. The court its relied upward on two separate Guidelines it provisions to

support

departure.

First,

applied

Guidelines

section 4A1.3, which authorizes an upward departure when, inter alia, a defendant's criminal history category substantially

underrepresents the likelihood that he will commit other crimes. See USSG § 4A1.3(a)(1). section 5K2.21, which Second, the court applied Guidelines authorizes an upward departure that

reflects the actual seriousness of the defendant's offense based on conduct underlying a charge dismissed under a plea agreement. Notably, the court did not specify the extent of departure

attributable to each Guidelines provision, nor did it indicate the Guidelines range to which it was departing. assessed concluding originally and that applied a the § 3553(a) within be the The court then factors, range as the

sentencing Guidelines to

sentence would

calculated

insufficient

achieve

purposes of sentencing. of 200 months.

Thus, it imposed an aggregate sentence

Reddick has filed a timely notice of appeal, and we possess jurisdiction § 1291. pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

5

II. We review a sentence imposed by a district abuse of court for

reasonableness, standard.

applying

the

deferential

discretion This

Gall v. United States, 552 U.S. 38, 46 (2007).

standard of review encompasses both procedural and substantive reasonableness. Id. at 51. We first ensure that the court

committed no significant procedural error, "such as failing to calculate Id. (or improperly calculating) the Guidelines range."

If there is no procedural error, we review the sentence for reasonableness, into account taking to the "totality whether of the the court

substantive

circumstances"

determine

"abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)." United States

v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

III. A. Reddick unreasonable, departing first challenges that his the by sentence district failing as procedurally erred apply in the That

maintaining on

court to

upward

Count

One

incremental approach mandated by Guidelines section 4A1.3.

provision, entitled "Departures Based on Inadequacy of Criminal History Category," authorizes a sentencing court to depart

upward "[i]f reliable information indicates that the defendant's 6

criminal

history

category

substantially

under-represents

the

seriousness of [his] criminal history or the likelihood that [he] will commit other crimes." USSG § 4A1.3(a)(1). After the

sentencing court determines that a section 4A1.3 departure is warranted, moving it is obliged to depart on an incremental criminal that basis, history is

"horizontally up to

across

successive and, if

categories inadequate, until it

category "to

VI,"

category

vertically a

successively range

higher

offense to the

levels case."

finds

guideline

appropriate

United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010); see also United States v. Harrison, 58 F.3d 115, 118 (4th Cir.

1995).

In applying this incremental approach, the court may

"move to successively higher categories only upon finding that the prior category does not provide a sentence that adequately reflects the seriousness of the defendant's criminal conduct." United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992). Reddick contends that, in imposing an above-Guidelines

sentence on Count One, the district court failed to employ the incremental approach required by section 4A1.3. that the court moved directly from the He maintains range

Guidelines

corresponding to an offense level of 20 and a criminal history category of IV (51 to 63 months) to the range applicable to an offense level of 24 and a criminal history category of VI (100 to 125 months) without first assessing whether the intermediate 7

criminal

history

category

of

V

or

the

intermediate

offense

levels of 21, 22, or 23 adequately reflected the seriousness of his criminal conduct. Accordingly, Reddick contends that the

court procedurally erred and that his sentence must be vacated. The fundamental flaw with this contention is that, even if the district court failed to apply the incremental analysis of Guidelines United section v. 4A1.3, Lynn, any 592 such F.3d error 572, is harmless. (4th are Cir. See 2010) to

States

576 errors

(concluding

that

procedural

sentencing

subject

harmless error review).

Notably, we have recognized that when

"a district court offers two or more independent rationales for its deviation, an appellate court cannot hold the sentence

unreasonable if the appellate court finds fault with just one of these rationales." (4th Cir. 2008). the district United States v. Evans, 526 F.3d 155, 165

Here, in addition to Guidelines section 4A1.3, also relied on section 5K2.21, which

court

authorizes an upward departure "to reflect the seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement . . . and (2) that did not enter into the determination of the applicable guideline range."

Importantly, section 5K2.21 does not require a sentencing court to apply any sort of incremental analysis when departing upward, and Reddick does not contend that the court otherwise erred in applying that provision. In other words, the court offered a 8

separate

and

procedurally

sound

rationale

for

its

upward

departure from Reddick's advisory Guidelines range on Count One. Thus, even if the court erred in departing under section 4A1.3, Reddick's aggregate sentence of 200 months is otherwise

procedurally reasonable.

Evans, 526 F.3d at 165. B.

Reddick next contends that his sentence is substantively unreasonable. The district court imposed a 116-month sentence

on Count One -- notwithstanding the advisory Guidelines range of 51 to 63 months -- and, as mandated by statute, also imposed a consecutive 84 months on Count Two, for an aggregate sentence of 200 months. Reddick maintains that the totality of the

circumstances fail to support such a deviation from the advisory Guidelines range, rendering the court's sentencing decision an abuse of discretion. In assessed § 3553(a). sentencing the It Reddick, the district set that forth the court in carefully 18 U.S.C. of the

sentencing first

factors

determined

seriousness

armed bank robbery underlying Reddick's convictions warranted an above-Guidelines sentence, as did his criminal history, which consisted of three prior armed robberies. that Reddick -- who had committed the The court also found offense of conviction

within six months of the termination of his parole on a prior armed robbery conviction -- was a "repeat offender, a recidivist" 9

who lacked "respect for the law."

J.A. 71.

Predicated on these

factors, the court concluded that an above-Guidelines sentence was necessary to "promote respect for the law" and to "protect the public from [Reddick]." sentencing sentence decision, the Id. at 70. emphasized the In explaining its that a 200-month of 264

court with

was

commensurate

statutory

minimum

months that Reddick would have received if he had been convicted on Count Three. Accordingly, the court concluded that an

aggregate above-Guidelines sentence of 200 months would achieve the sentencing goals of § 3553(a). In these circumstances, Reddick's sentence must be deemed substantively reasonable. The district court, having carefully

and thoroughly applied the § 3553(a) sentencing factors, did not abuse its substantial discretion in concluding that a withinGuidelines sentence was insufficient. And, although its

deviation from Reddick's Guidelines range was significant, the court offered ample justification for the aggregate sentence

that it imposed.

Accordingly, the court did not substantively

err in imposing its sentence.

IV. Pursuant to the foregoing, we reject each of Reddick's

contentions and affirm. AFFIRMED 10