US v. Lorenzo Pledger

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cr-00023-D-1. Copies to all parties and the district court/agency. [999524870].. [14-4218]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4218

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO PLEDGER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.
James C. Dever
III, Chief District Judge. (2:12-cr-00023-D-1)

Submitted:

December 22, 2014

Decided:

February 6, 2015

Before DUNCAN, FLOYD, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Seth A. Neyhart, Chapel Hill, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lorenzo Pledger appeals the 216-month sentence imposed
following his guilty plea to one count of conspiracy to possess
with intent to distribute a quantity of cocaine, in violation of
21 U.S.C. §§ 841(b)(1)(C) and 846 (2012).

Before this court,

Pledger asserts that the district court procedurally erred by
(1)

departing

(“USSG”)

upward

§ 4A1.3,

under

p.s.

U.S.

(2013);

Sentencing
and

(2)

Guidelines

granting

a

Manual

downward

departure under USSG § 5K1.1 but failing to state the extent of
the departure or to depart below Pledger’s guidelines range.
Pledger further asserts that these errors necessitate remanding
for

resentencing

because

his

sentence

is

substantively

unreasonable under the 18 U.S.C. § 3553(a) (2012) factors.

We

disagree that resentencing is necessary, and affirm Pledger’s
sentence.
We review a sentence for reasonableness applying “a
deferential

abuse-of-discretion

States, 552 U.S. 38, 41 (2007).
for

“significant

procedural

standard.”

Gall

v.

United

We first review the sentence
error,”

including

improper

calculation of the Guidelines range, insufficient consideration
of

the

§

3553(a)

sentence imposed.

factors,

and

Id. at 51.

inadequate

explanation

of

the

Any preserved claim of procedural

error is subject to harmlessness review.
592 F.3d 572, 576 (4th Cir. 2010).
2

United States v. Lynn,
“A Guidelines error is

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considered harmless if we determine that (1) the district court
would have reached the same result even if it had decided the
guidelines issue the other way; and (2) the sentence would be
reasonable even if the guidelines issue had been decided in the
defendant’s favor.”

United States v. Gomez-Jimenez, 750 F.3d

370, 382 (4th Cir.) (internal quotation marks omitted), cert.
denied, 135 S. Ct. 305, 384 (2014).
Where

the

district

court

procedurally

errs

in

its

Guidelines calculations but announces an alternative basis under
the § 3553(a) factors for the sentence it imposed, we must give
“due deference” to the district court’s § 3553(a) analysis.
at 383.

Id.

“When reviewing the substantive reasonableness of a

sentence, we examine the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).”

Id.

(alteration

and

internal

quotation

marks

omitted).
Under USSG § 4A1.3(a)(1), a district court may depart
upward

from

information

a

defendant’s

indicates

that

Guidelines
the

range

defendant’s

“[i]f

reliable

criminal

history

category substantially under-represents the seriousness of the
defendant’s
defendant

criminal
will

commit

history
other

or

the

crimes.”

likelihood
Where,

as

that
here,

the
a

defendant’s criminal history category is VI, “the court should
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the

departure

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by

moving

incrementally

down

the

sentencing table to the next higher offense level in Criminal
History Category VI until it finds a guideline range appropriate
to the case.”

USSG § 4A1.3(a)(4)(B); see also United States v.

Dalton, 477 F.3d 195, 199 (4th Cir. 2007).
requirement,
through

a

a

district

court,

ritualistic

however,

exercise

in

To satisfy this

“need

which

not
it

.

.

.

go

mechanically

discusses each criminal history category or offense level it
rejects

en

selects.”

route

to

the

category

or

offense

level

that

it

Dalton, 477 F.3d at 199 (alterations and internal

quotation marks omitted).
First, Pledger argues that the district court failed
to apply an incremental approach when departing upward.

The

record demonstrates, however, that the district court clearly
noted its responsibility under USSG § 4A1.3(a)(4)(B) and Dalton
to

employ

an

incremental

approach

when

departing.

After

mentioning the possibility of raising Pledger’s offense level to
level

thirty

determined
Pledger’s
district
departure

or

that

thirty-one,
level

thirty-two

under-represented
court
by

the

district

history.

justified

violent

court

appropriately

criminal

sufficiently

citing

the

nature

the
of

ultimately

accounted

for

Finally,

the

extent

of

Pledger’s

its
prior

offenses, the fact that Pledger did not take advantage of the
repeated leniency he received when sentenced in state court, and
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likelihood

that

§ 4A1.3 cmt. background.

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Pledger

would

reoffend.

See

USSG

Accordingly, the district court did

not procedurally err in determining the extent of its departure.
Second, Pledger argues that under USSG § 1B1.1(a)(6),
the district court erred by departing upward pursuant to USSG
§ 4A1.3(a)

after

adjusting

Pledger’s

total

offense

level

and

Guidelines range based on Pledger’s career offender status under
USSG § 4B1.1.
ability

to

However, we have approved of a district court’s
depart

under

USSG

§

4A1.3

after

adjusting

a

defendant’s Guidelines range in accordance with USSG § 4B1.1.
See United States v. Munn, 595 F.3d 183, 188-89 n.8 (4th Cir.
2010)

(“[A]

Offender

sentencing

Provision

court,

after

overrepresented

finding
a

that

the

defendant’s

Career

criminal

history, was free to depart [under USSG § 4A1.3] to a lower
level, a lower criminal history category, or both.”).

In fact,

as the extent of a departure under USSG § 4A1.3 may be limited
by

a

defendant’s

status

as

a

career

offender,

see

USSG

§ 4A1.3(b)(3)(A), it would be impossible to accurately depart
under USSG § 4A1.3 prior to determining whether a defendant is a
career offender for purposes of USSG § 4B1.1.

Accordingly, the

district court did not procedurally err by departing under USSG
§ 4A1.3(a) after adjusting Pledger’s offense level pursuant to
USSG § 4B1.1.

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Whether

the

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district

court

procedurally

erred

departing under USSG § 5K1.1 is a closer question.

when

But even

assuming procedural error, we conclude that any such error was
harmless.

See United States v. Hargrove, 701 F.3d 156, 161-62

(4th Cir. 2012); United States v. Savillon-Matute, 636 F.3d 119,
123-24 (4th Cir. 2011).

Where a sentencing court “expressly

state[s] in a separate and particular explanation that it would
have reached the same result, specifically citing to SavillonMatute, Hargrove, and its review of the § 3553(a) factors,” it
is apparent that the court would have imposed the same sentence
absent

the

alleged

error.

Gomez-Jimenez,

750

F.3d

at

383.

Here, the district court unquestionably announced an alternative
basis for its sentence pursuant to Savillon-Matute and Hargrove,
stating

that

even

if

it

erred

when

calculating

Pledger’s

Guidelines range, it would have imposed a 216-month sentence
under the § 3553(a) factors.

Therefore, the first prong of the

harmless error test is satisfied and remand is only appropriate
if the sentence imposed is substantively unreasonable.
Pledger
unreasonable

contends

because

the

that

his

district

sentence
court

is

substantively

over-emphasized

his

criminal history in comparison to the other § 3553(a) factors.
We disagree.
“[D]istrict

courts

have

extremely

broad

discretion

when determining the weight to be given each of the § 3553(a)
6

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factors.”
2011).

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United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.

The district court acknowledged that Pledger was not a

“huge dealer” but placed more weight on the fact that Pledger
was

“a

relentless

criminal

offense,”

dealer”

who

involving

“engaged,

“very

again,

harmful

in

a

serious

substances.”

In

imposing its sentence, the district court also relied on the
need to protect society from Pledger because he was “a very
violent, dangerous criminal” who would reoffend.

Finally, the

court noted Pledger’s lack of respect for the law evidenced by
Pledger’s statement to the court.
The

mere

fact

that

the

district

court

weighed

Pledger’s likelihood of recidivism and the need to protect the
public more heavily than other § 3553(a) factors does not render
the sentence substantively unreasonable.
Rivera-Santana,

668

F.3d

95,

104-05

See United States v.

(4th

Cir.

2012).

The

district court did not abuse its discretion by imposing a 216month

sentence

under

the

§

3553(a)

factors

where,

after

considering all the factors, it decided to focus on Pledger’s
likelihood

of

recidivism

and

the

need

to

protect

the

public

given Pledger’s extensive criminal record, featuring twenty-four
years of serious offenses.
Because Pledger’s 216-month sentence is substantively
reasonable under the § 3553(a) factors, the second prong of the
harmless

error

test

is

satisfied.
7

Accordingly,

we

affirm

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Pledger’s sentence.
facts

and

materials

legal
before

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We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

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