US v. Trevin Gibson

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 4:12-cr-00075-D-1; 4:12-cr-00075-D-2; 4:12-cr-00075-D-4. Copies to all parties and the district court. [999683750]. [14-4154, 14-4169, 14-4183]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4154

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREVIN MAURICE GIBSON,
Defendant - Appellant.

No. 14-4169

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL RONDALE GIBSON,
Defendant - Appellant.

No. 14-4183

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

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DESHAUN ENTREA SPRUILL,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge.
(4:12-cr-00075-D-1; 4:12-cr-00075-D-2;
4:12-cr-00075-D-4)

Argued:

September 17, 2015

Decided:

October 22, 2015

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished opinion.
Judge Keenan wrote
opinion, in which Judge Niemeyer and Judge Shedd joined.

the

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellants.
Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Terry F. Rose,
Smithfield, North Carolina for Appellant Trevin Maurice Gibson.
Brian M. Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North
Carolina, for Appellant Michael Rondale Gibson.
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Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:
Deshaun

Spruill,

Michael

Gibson,

and

Trevin

Gibson

(collectively, the defendants) each pleaded guilty to two counts
of using or carrying a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c)(1).
consolidated

appeals,

whether

Spruill’s

whether

Michael

substantively

they

present

sentence

is

Gibson’s

following

procedurally

and

unreasonable;

the

Trevin

and

(3)

issues:

(1)

unreasonable;

(2)

Gibson’s
whether

In their

sentences
Trevin

are

Gibson’s

sentence constitutes cruel and unusual punishment in violation
of

the

Eighth

Amendment.

Upon

review

of

the

defendants’

sentences, we affirm the district court’s judgment.
I.
The defendants participated in a number of armed robberies
between September 2011 and January 2012, which occurred at “fast
food” restaurants throughout the eastern part of North Carolina.
Trevin Gibson and Michael Gibson participated in, respectively,
ten and five robberies.

Deshaun Spruill participated in ten

robberies and one additional robbery attempt.
In each of these robberies, various defendants, with their
faces

concealed

by

hooded

sweatshirts,

bandanas,

or

masks,

entered a fast food restaurant brandishing firearms and knives.
One defendant escorted the store manager at gunpoint to open the
restaurant’s safe, while the remaining defendants stayed in the
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front

of

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the

registers.

The

restaurant

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and

government

removed

described

cash

the

from

robbery

the
spree

cash
as

a

“reign of terror” across multiple jurisdictions, which required
the

use

of

substantial

law

enforcement

resources

and

the

coordination of multiple law enforcement agencies.
In June 2012, the defendants were charged with 16 counts of
robbery under the Hobbs Act, 18 U.S.C. § 1951, and 16 counts of
using firearms during the robberies, in violation of 18 U.S.C.
§ 924(c)(1). 1

Under

their

respective

plea

agreements,

each

defendant pleaded guilty to two counts of using or carrying a
firearm during a crime of violence under Section 924(c)(1), in
exchange for the government dismissing the other charges.

These

counts of conviction carried a mandatory minimum sentence of
five years’ imprisonment for the first offense and 25 years’
imprisonment for the second offense, to be served consecutively.
See 18 U.S.C. § 924(c)(1)(A), (C), (D).

The government and each

defendant agreed that the advisory guideline sentence for each
defendant was the statutory minimum of 30 years’ imprisonment.
The district court accepted the defendants’ guilty pleas, and

1

Five defendants were accused of participating in this
spree. Codefendant Marcus Garrett did not file an appeal of his
conviction or his sentence.
This Court dismissed codefendant
Prentise Wilkins’ appeal pursuant to a valid waiver of his
appellate rights.
See United States v. Wilkins, 604 F. App’x.
322, 323 (4th Cir. 2015).

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found each of the three defendants guilty of the two firearms
charges.
Spruill

received

a

396-month

sentence,

which

upwardly

departed from the advisory guideline sentence of 360 months.
Spruill
sentence

argued

at

allowed

the

by

sentencing

statute

would

hearing
be

that

sufficient

the

minimum

punishment,

because he had a difficult family background and no criminal
record, had graduated from high school and enrolled in community
college,

had

committed

to

enlisting

in

accepted responsibility for his actions.
explained

that

it

had

“considered

all

the

Army,

and

had

The district court
arguments

[Spruill’s]

lawyer [had] made,” but found that other factors warranted an
upward departure.

The court found that Spruill had participated

in eight robberies and one attempted robbery, in addition to the
two

robberies

forming

the

basis

of

Spruill’s

firearms

convictions.
The court explained that the robbery spree “terrorized” the
victims who were “making minimum wage” and “trying to live an
honest life,” and attributed Spruill’s criminal conduct to his
own “greed.”

During the sentencing hearing, the district court

commented that Spruill had exhibited a “smirk,” which indicated
that Spruill felt “no remorse at all.”

Based on these factors,

the district court concluded that “society needs to be protected
from [Spruill].”

The court relied on the dismissed robbery and
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firearms counts to apply U.S.S.G. § 5K2.21, which allowed the
court to upwardly depart “to reflect the actual seriousness of
the offense based on conduct underlying a charge dismissed as
part of a plea agreement.”

In sentencing Spruill for the first

count

court

of

conviction,

the

upwardly

departed

from

the

guideline sentence of 60 months, and imposed a sentence of 96
months.

On the second count, the court imposed the guideline

sentence of 300 months’ imprisonment.
The

district

court

also

sentencing Michael Gibson.

applied

an

upward

departure

in

At the sentencing hearing, Michael

Gibson argued that the guideline sentence was an appropriate
sentence based on his youth, his substance abuse problems, and
his

acceptance

argument,

the

of

responsibility.

government

asked

the

Disagreeing
court

to

with

this

consider

a

photograph from the September 3, 2011 robbery, which depicted a
victim whose countenance reflected an “absolute vision of fear.”
The

district

court

considered

the

violent

nature

of

the

robberies, the vulnerability of the victims, Michael Gibson’s
criminal history, and the dismissed robbery and firearms counts,
and found that “serious punishment” was required “to reflect the
serious nature of his crimes” and to “protect society.”

The

district court cited the dismissed robbery and firearms charges
and applied a Section 5K2.21 upward departure from the guideline
sentence of 60 months and sentenced Michael Gibson to 132 months
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on the first firearms count.
sentence

of

300

months’

The court imposed the guideline

imprisonment

on

the

second

firearms

count.
The district court imposed a greater sentence on Trevin
Gibson than the sentences received by any of his codefendants.
When Trevin Gibson participated in the first two robberies, he
was still in the custody of the Bureau of Prisons (BOP), serving
a

sentence

sporting

in

goods

home

detention

store

and

for

stealing

breaking
12

and

entering

firearms.

After

a
his

release from BOP custody, while on supervised release, Trevin
Gibson participated in eight more robberies, bringing his total
participation to ten robberies.
convicted

of

two

firearms

Ultimately, Trevin Gibson was

charges

arising

from

robberies

committed while he was on supervised release.
At his sentencing hearing, Trevin Gibson argued that the
guideline
especially

sentence

of

30

considering

years’

the

imprisonment

likely

release in his prior criminal case.

was

revocation

of

sufficient,
supervised

However, he did not offer

any particular mitigating reason that would have justified a
more

lenient

sentence

Gibson or Spruill.

than

those

of

terror”

imposed

on

Michael

At the hearing, the government gave a vivid

description of the robbery spree.
“reign

already

that

these

In addition to describing the
robberies

caused

and

the

substantial law enforcement resources expended, the government
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Trevin

participation

in

Gibson’s

some

of

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prior

the

criminal

robberies

history

while

and

still

his

in

BOP

custody.
The district court found that Trevin Gibson’s commission of
the first two robberies while in BOP custody, and his commission
of eight more robberies while on supervised release, reflected a
complete lack of respect for the law.

In addition, the district

court discussed the severity of the robberies, their effect on
the victims, and the likelihood that Trevin Gibson would engage
in recidivist conduct.
education,

and

“the

Taking into account Trevin Gibson’s age,
entire

record

in

this

applied a Section 5K2.21 upward departure.

case,”

the

court

As a result, Trevin

Gibson received a sentence of 216 months’ imprisonment on the
first firearms count, increased from the guideline sentence of
60

months.

He

also

received

the

guideline

sentence

of

300

months’ imprisonment on the second firearms count, which yielded
a cumulative consecutive sentence of 516 months’ imprisonment
for the two offenses.

This appeal followed.
II.

The defendants each present different arguments regarding
their respective sentences and the reasons why those sentences
should

be

vacated

and

the

cases

remanded

for

resentencing.

Accordingly, we will address those arguments separately.

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A.
Deshaun Spruill argues on appeal that the district court
imposed a procedurally unreasonable sentence, in that the court
failed to address directly the arguments that Spruill raised at
sentencing.

Spruill asks that we adopt the Seventh Circuit’s

holding in United States v. Villegas-Miranda, and conclude that
a

district

court

must

address

all

the

sentencing

arguments

raised by a defendant that are “not so weak as not to merit
discussion.”

579 F.3d 798, 802 (7th Cir. 2009) (quoting United

States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)).
Assuming,

without

deciding,

that

we

would

adopt

such

a

rule, the rule still would be inapplicable to the arguments that
Spruill raised at his sentencing hearing.

The Seventh Circuit

cases on which Spruill relies require only that a district court
explain its rejection of a particular legal principle raised by
a defendant.

See Villegas-Miranda, 579 F.3d at 803–04 (holding

that a district court must address an argument that a defendant
is

entitled

to

credit

for

time

served

in

state

custody);

Cunningham, 429 F.3d at 679 (vacating a district court sentence
for

failing

to

address

the

defendant’s

argument

for

“diminished capacity” departure under U.S.S.G. § 5K2.13).
however,
particular

Spruill
legal

did

not

principle

advance
or

arguments

doctrine.

invoking

Rather,

a

Here,
any

Spruill’s

factual arguments, which included his enrollment in community
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college and his commitment to enlist in the Army, concerned the
appropriate

weight

to

be

accorded

the

circumstances

personal history under the Section 3553(a) factors.

of

his

Therefore,

we do not give further consideration to Spruill’s request that
we adopt certain procedures imposed by the Seventh Circuit, and
turn to consider his Section 3553(a) arguments under our own
circuit precedent.
We

have

held

that

a

district

court

must

consider

the

statutory factors and explain the reasons for its sentence, but
that the court need not explicitly reference Section 3553(a) or
discuss on the record every statutory factor.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006).

United States v.
The district court

is required only to make an individualized assessment that is
adequate to allow meaningful appellate review.

United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).

Accordingly, we

infer

that

the

district

court

has

considered

all

relevant

arguments presented at the sentencing hearing, especially when
the court states on the record that it has done so.

See Rita v.

United States, 551 U.S. 338, 358–59 (2007) (holding that the
sentencing judge is not required to state explicitly that he has
heard

and

considered

all

arguments

when

“[t]he

record

makes

clear that the sentencing judge listened to each argument”).
At

Spruill’s

sentencing,

the

district

court

expressly

stated that it had considered “all arguments [Spruill’s] lawyer
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has made” and “all [Section 3553(a)] factors” before sentencing
Spruill.

Those statements by the district court demonstrate

that the court considered and rejected Spruill’s arguments.
at 358.

Id.

In addition, the court found that the “smirk” Spruill

exhibited before the court was evidence of his lack of remorse,
and indicated a need for incarceration to deter Spruill from
engaging in future criminal activity.

When the district court

applied an upward departure under U.S.S.G. § 5K2.21, the court
primarily relied on the nature and seriousness of the dismissed
robbery and firearms counts.

Considered as a whole, this record

shows that the district court made an individualized assessment
and gave an adequate explanation of its reasons for imposing
Spruill’s particular sentence.
thus

conclude

that

Spruill’s

See Carter, 564 F.3d at 330.
sentence

was

not

We

procedurally

unreasonable.
B.
Michael

Gibson

argues

that

his

sentence

imprisonment was substantively unreasonable.

of

432

months’

He contends that

the district court failed to consider his youth as a mitigating
factor,
history,

overstated
and

determining

the

failed
the

seriousness

to

consider

likelihood

criminal acts if released.

that

of
the

he

his

youthful

“effect
would

of

commit

criminal

aging”

in

additional

We address each of these arguments

in turn.
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This

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Court

reviews

the

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substantive

reasonableness

of

a

district court’s sentence for abuse of discretion, taking into
account

the

totality

of

the

circumstances.

Gall

v.

United

States, 552 U.S. 38, 56 (2007); United States v. Morace, 594
F.3d 340, 345–46 (4th Cir. 2010).
held

that

appellate
formulas

the

abuse-of-discretion

courts

reject

the

evaluating

when

the

non-guideline sentence.
We

The Supreme Court also has

conclude

that

use

standard
of

rigid

substantive

requires

that

percentage-based

reasonableness

of

a

Gall, 552 U.S. at 47–49.
Michael

Gibson

has

not

shown

that

the

district court failed to consider his relative youth during the
sentencing hearing.

The district court stated on the record

that it had “considered all arguments [Michael Gibson’s] lawyer
has made.”
court

This record is sufficient to show that the district

actually

Gibson’s

considered

relative

youth

the

presented

argument
at

the

concerning

Michael

sentencing

hearing.

See Rita, 551 U.S. at 358–59; see also discussion supra Part
II.A.
Additionally, we conclude that Michael Gibson’s reliance on
Roper v. Simmons, 543 U.S. 551, 569–70 (2005), and United States
v. Howard, 773 F.3d 519, 531 (4th Cir. 2014), is unavailing.
Unlike the defendant in Simmons, who was sentenced to the death
penalty for acts committed as a juvenile, Michael Gibson was
sentenced

to

a

term

of

imprisonment,
12

and

received

an

upward

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departure, for crimes he committed at 19 years of age.
this

Court

in

Howard

cautioned

district

Although

courts

against

“focus[ing] extensively on a [juvenile criminal record] . . . at
the expense of a reasoned analysis of other pertinent factors,”
773 F.3d at 531, Michael Gibson’s criminal history only includes
one

crime

committed

before

his

eighteenth

birthday,

and

the

district court mentioned that marijuana offense only in passing
while

focusing

other

Section

supports
marijuana

a

on

his

3553(a)

conclusion
offense

“at

more

serious

factors.
that
the

other pertinent factors.”

adult

convictions

And
court

the

nothing
focused

expense
Id.

of

a

in

and

on

the
that

single

on

record

reasoned

analysis

of

Accordingly, we conclude that

the district court did not fail to consider Michael Gibson’s
youth as a factor in determining his appropriate sentence.
Michael

Gibson

next

argues

that

a

total

years would have been sufficient in his case.

sentence

of

30

He notes that if

he were given such a sentence he would be over 50 years old at
the time of his release, and that, generally, statistics show
that

the

offenders

incidence
over

45

years

(collecting studies).
Statistical
undermine

of

drops

old.

Howard,

See

significantly
773

F.3d

at

for
533

We are not persuaded by this argument.

correlations
the

recidivism

validity

among
of

large
a

populations

district

court’s

will

not

careful,

individualized assessment of a particular defendant convicted of
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a particular crime.

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We therefore turn to review the factors

that the district court actually cited when sentencing Michael
Gibson.
The district court emphasized the serious nature of the
robberies,

the

vulnerability

of

the

victims,

and

Michael

Gibson’s failure to “turn away from a criminal lifestyle” after
his prior convictions.

Michael Gibson’s sentence of 432 months

for the two firearms convictions reflects a 20-percent increase
over

the

combined

guideline

sentence

for

both

counts.

His

attempt to focus solely on the district court’s greater upward
departure

on

substantive
totality

of

formulation.”

the

first

count

reasonableness
the

ignores

be

circumstances

Gall’s

evaluated
without

552 U.S. at 47–51.

by

directive

that

examining

the

“rigid

mathematical

Moreover, without a plea

agreement, Michael Gibson would have faced a statutory minimum
of an additional 75 years’ imprisonment for the three dismissed
firearms counts that provided part of the basis for the Section
5K2.21 departure.

See 18 U.S.C. § 924(c)(1)(C).

Therefore, we

conclude that the imposition of a six-year upward departure for
the three dismissed firearms counts and the five robbery counts
was not an abuse of discretion, and that Michael Gibson’s 36-

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year sentence is substantively reasonable under the totality of
the circumstances. 2
C.
Trevin

Gibson

argues

that

his

sentence

of

43

years

is

substantively unreasonable and violates the Eighth Amendment’s
prohibition

against

cruel

and

unusual

punishment.

We

first

analyze the substantive reasonableness of the sentence before
turning to the constitutional question.
Trevin

Gibson’s

central

contention

regarding

substantive

reasonableness is that the factual record was insufficient to
support the 13-year upward departure imposed by the district
court.

As

discussed

above,

we

review

the

substantive

reasonableness of a sentence for abuse of discretion under an
analysis of the totality of the circumstances.

Gall, 552 U.S.

at 51.
The district court found that Trevin Gibson’s participation
in

the

robbery

spree

while

still

serving

a

sentence

in

BOP

custody and on supervised release reflected “utter and sheer
disrespect for the law,” and indicated a high risk of recidivism

2

Because the district court did not err in calculating
Michael Gibson’s advisory guideline sentence, and we determine
that the district court did not abuse its discretion in applying
a Section 5K2.21 departure, we need not address Michael Gibson’s
argument that the court’s alternative variant sentence is
substantively unreasonable.

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if he were to receive only the minimum punishment afforded by
statute.

The court also discussed Trevin Gibson’s participation

in eight other robberies in the same spree, and concluded that
“these violent, despicable acts” warranted an upward departure
in sentence.
would

have

Trevin Gibson’s eight dismissed firearms counts
carried

a

mandatory

minimum

of

200

years

of

additional imprisonment, see 18 U.S.C. § 924(c)(1)(C), but the
district court applied only a 13-year upward departure under
Section 5K2.21.

Accordingly,

we

conclude

that

the

district

court listed sufficient reasons, complete with citations to the
record, to support the substantive reasonableness of the upward
departure.
Trevin
sentence

Gibson

already

argues,

accounted

nevertheless,
for

his

that

criminal

the

guideline

history

and

the

nature of the typical armed robbery, with the result that the
district court unreasonably “double counted” those factors in
imposing the upward departure of 13 years.

However, contrary to

Trevin Gibson’s characterization of the sentencing proceedings,
the

district

court

only

counted

these

factors

once,

because

neither factor raised the advisory guideline sentence from the
statutory mandatory minimum.

And, in any event, the sentencing

guidelines permit double counting unless expressly prohibited,
which was not the case here.

See United States v. Rivera-

Santana, 668 F.3d 95, 102 (4th Cir. 2012) (holding that a single
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prior conviction may properly be used to calculate two upward
departures, an upward variance, and a sixteen-level enhancement,
because the guidelines do not prohibit such multiple counting);
see also United States v. Crawford, 18 F.3d 1173, 1179 (4th Cir.
1994) (holding that “double counting is permissible under the
guidelines except where it is expressly prohibited”) (internal
quotation marks omitted).

Accordingly, we conclude that Trevin

Gibson’s sentence is substantively reasonable.
Trevin Gibson also argues that his sentence of 43 years
constitutes cruel and unusual punishment, in violation of the
Eighth Amendment.

We disagree.

Although the Eighth Amendment requires proportionality in
punishment, the Supreme Court has made clear that the Eighth
Amendment

“forbids

only

extreme

disproportionate to the crime.”

sentences

that

are

grossly

Graham v. Florida, 560 U.S. 48,

59–60 (2010) (emphasis added); see also United States v. Cobler,
748 F.3d 570, 575 (4th Cir. 2014).

And the Supreme Court has

identified only one such grossly disproportionate sentence of
imprisonment, in Solem v. Helm, 463 U.S. 277, 303 (1983), in
which the defendant received a sentence of life imprisonment
without the possibility of parole for a single conviction for
passing a bad check in the amount of $100.
Indeed,

the

Supreme

Court

even

has

upheld

Id. at 281–82.
under

the

Eighth

Amendment a sentence of 25 years to life imprisonment for a
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single non-violent crime of shoplifting $1,200 worth of golf
clubs.

Ewing

v.

California,

538

U.S.

11,

18-20

(2003)

(plurality opinion).
In contrast, Trevin Gibson was sentenced to a term of 43
years’ imprisonment for two firearms offenses related to armed
robberies, which were part of a robbery spree involving multiple
violent crimes that “terrorized” several communities, and were
committed

while

he

was

in

home

detention

release for another serious firearms offense.

or

on

supervised

Trevin Gibson was

responsible for over $5,000 in victim losses attributable to his
crimes of conviction, and over $15,000 in victim losses related
to the dismissed robberies.

Therefore, we hold that, under the

Supreme Court’s proportionality decisions and our decision in
Cobler, Trevin Gibson’s sentence is not grossly disproportionate
to

his

criminal

reference

to

the

conclude

that

conduct,
two

his

even

counts
sentence

of

if

considered

conviction.

does

solely

with

Accordingly,

we

not

violate

the

Eighth

the

sentences

of

Deshaun

Amendment.
III.
For

these

reasons,

we

affirm

Spruill, Michael Gibson, and Trevin Gibson.
AFFIRMED

18