US v. Antonio Dovine

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00279-FL-1 Copies to all parties and the district court/agency. [999369953]. [13-4099]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4099

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO RASHAAD DOVINE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:11-cr-00279-FL-1)

Submitted:

May 30, 2014

Before MOTZ and
Circuit Judge.

SHEDD,

Decided:

Circuit

Judges,

and

June 5, 2014

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant.
Thomas G. Walker, United
States
Attorney,
Jennifer
P.
May-Parker,
Yvonne
WatfordMcKinney, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antonio Rashaad Dovine was convicted following a jury
trial of one count of conspiracy to interfere with commerce by
robbery, 18 U.S.C. § 1951 (2012) (Count One); five counts of
Hobbs

Act

robbery,

18

U.S.C.

§§ 2,

1951

(2012)

(Counts

Two,

Four, Seven, Ten, and Twelve); one count of attempted Hobbs Act
robbery, (Count Fourteen); six counts of use of a firearm during
a

crime

of

violence,

18

U.S.C.

§§

2,

924(c)

(2012)

(Counts

Three, Five, Eight, Eleven, Thirteen, and Fifteen); and three
counts of possession of a firearm by a felon, 18 U.S.C. § 922(g)
(2012)

(Counts

Six,

Nine,

and

Sixteen).

The

district

court

sentenced Dovine to 168 months’ imprisonment on the conspiracy,
robbery, and attempted robbery convictions, to run concurrently
with each other; 120 months’ imprisonment on the possession of a
firearm by a felon convictions, to run concurrently with the
other substantive offenses; a mandatory consecutive eighty-four
months’ imprisonment on Count Three; and mandatory consecutive
300 months’ imprisonment on each of the remaining five § 924(c)
convictions, resulting in a cumulative sentence of 1754 months’
imprisonment.

On

violates

the

unusual

punishment

unreasonable.

appeal,

Eighth

Dovine

Amendment’s
and

is

contends

protection

procedurally

We affirm.

2

that

his

against
and

sentence
cruel

and

substantively

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Dovine first argues that his 1754-month sentence is
grossly disproportionate to his crimes, considering the nature
of the conduct, his age and background, and the sentences of his
coconspirators.

We review de novo challenges to sentences on

Eighth Amendment grounds.

United States v. Cobler, __ F.3d __,

2014 WL 1395695, at *2 (4th Cir. Apr. 11, 2014).

We “first must

determine that a ‘threshold comparison’ of the gravity of the
offense and the severity of the sentence ‘leads to an inference
of gross disproportionality.’”
560

U.S.

48,

59-60

Id. (quoting Graham v. Florida,

(2010)).

If

Dovine

establishes

this

inference, we “then compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction
and

with

the

sentences

jurisdictions.”

imposed

for

the

same

crime

in

other

Graham, 560 U.S. at 60.

Congress mandates a minimum seven-year sentence for an
initial conviction under 18 U.S.C. § 924(c)(1)(A)(ii), and a
mandatory minimum sentence of twenty-five years for a second or
subsequent § 924(c) conviction.

18 U.S.C. § 924(c)(1)(C)(i).

Sentences imposed under § 924(c) cannot “run concurrently with
any other term of imprisonment imposed on the person, including
any term of imprisonment imposed for the crime of violence or
drug

trafficking

carried,

or

crime

possessed.”

during
18

which

U.S.C.

the
§

firearm

was

924(c)(1)(D)(ii).

used,
The

district court appropriately imposed a seven-year sentence for
3

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Dovine’s

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first

conviction

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(Count

Three)

and

five

consecutive

twenty-five-year terms of imprisonment on Counts Five, Eight,
Eleven, Thirteen, and Fifteen.
concurrent

The district court also imposed

within-Guidelines

sentences

for

the

substantive

offenses.
We
threshold

conclude
inference

that

Dovine

that

his

fails

may

constitutional

be

cruel,

sense,

but

having

they
been

establish

sentence

disproportionate under the Eighth Amendment.
penalties

to

are

grossly

“Severe, mandatory

not

employed

is

the

unusual
in

in

various

the
forms

throughout our Nation's history.”

Harmelin v. Michigan, 501

U.S.

this

957,

994–95

(1991).

Indeed,

court

has

held

that

stacked mandatory sentences under § 924(c) do not contravene the
Constitution.
495

(4th

Cir.

See, e.g., United States v. Khan, 461 F.3d 477,
2006)

(lengthy

mandatory

sentences

imposed

on

defendants by “count-stacking” provisions of 18 U.S.C. § 924(c)
did not constitute cruel and unusual punishment).
Moreover, a comparison of Dovine’s combined sentence
to the gravity of the offense fails to support his argument.
Together with his coconspirators, Dovine robbed five separate
establishments and attempted to rob a sixth during a three-week
spree.

The conspirators, armed with knives and firearms, used

violence against three victims and held employees and customers
at gunpoint to obtain money.

Thus, although harsh, we conclude
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that

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Dovine’s

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1754-month

sentence

is

not

grossly

disproportionate to the offenses and therefore does not violate
the Eighth Amendment.
Dovine also argues that his sentence is procedurally
and substantively unreasonable.

We review criminal sentences

for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007).
“must

first

significant

ensure

that

procedural

the

district

error,”

such

as

In so doing, we

court

committed

improperly

no

calculating

the advisory Sentencing Guidelines range, failing to consider
the

18

U.S.C.

§

3553(a)

factors,

explain the chosen sentence.

or

failing

to

adequately

Id.

Dovine challenges the district court’s explanation of
its sentence.

In sentencing a defendant, the district court

must consider the statutory factors and “make an individualized
assessment based on the facts presented.”
“individualized

assessment

need

not

be

Id. at 50.
elaborate

While the

or

lengthy,

. . . it must provide a rationale tailored to the particular
case

at

review.”

hand

and

adequate

to

permit

appellate

United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (internal quotation marks omitted).
district

meaningful

court’s

explanation

indicated

While sparse, the
that

it

considered

Dovine’s background and mental health in addition to the offense
conduct, which was the focus of its explanation.
5

We conclude

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that

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the

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district

court’s

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explanation

was

sufficient

to

facilitate our review, and therefore, we perceive no procedural
error.
We
under

the

assess

totality

a
of

sentence’s
the

substantive

circumstances.

reasonableness

United

Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
on

appeal

that

reasonable.

a

sentence

within

the

States

v.

We presume

Guidelines

range

is

United States v. Strieper, 666 F.3d 288, 295 (4th

Cir. 2012).
Dovine
reasonableness

has

failed

attached

to

to

his

rebut

the

sentences,

presumption

which

were

at

of
the

bottom of the Guidelines ranges for the conspiracy, robberies,
and attempted robbery.
spree

was

very

The district court found that the crime

serious,

noting

that

Dovine

and

his

coconspirators brandished firearms and knives to demand money
and used violence against patrons and employees.

Moreover, the

great majority of Dovine’s sentence was statutorily required and
is therefore per se reasonable.
F.3d 210, 224 (4th Cir. 2008).

United States v. Farrior, 535
We thus conclude that Dovine has

not rebutted the presumption of reasonableness that attaches to
his within-Guidelines sentence.
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

6

because

the

facts

and

legal

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contentions are adequately presented in the material before this
court and argument will not aid in the decisional process.

AFFIRMED

7