USA v. Jamal Stephens

Filing 511076459

Case: 09-10179

Document: 00511076459

Page: 1

Date Filed: 04/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 12, 2010 N o . 09-10179 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. J A M A L STEPHENS, D e fe n d a n t-A p p e lla n t

A p p e a ls from the United States District Court for the Northern District of Texas U S D C No. 4:08-CR-161-A U S D C No. 4:08-CR-107-A

B e fo r e GARWOOD, WIENER, and BENAVIDES, Circuit Judges. P E R CURIAM:* Appellant Jamal Stephens (Stephens) appeals his criminal sentencing p r o c e e d in g that dramatically departed from the Sentencing Guidelines ("USSG") b a s e d on unprosecuted offenses. The case involves the application of the USSG a n d federal statutes to determine if the sentence imposed is procedurally and s u b s t a n t iv e ly unreasonable. Because the district court committed procedural

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-10179 e r r o r in computing the upward departure in this upward departure Guidelines s e n t e n c e , we vacate the sentence and remand for resentencing. F ACTUAL AND PROCEDURAL BACKGROUND S te p h e n s was implicated in seven robberies during the months of AprilJ u n e in 2008. Stephens first robbed the Security One Bank in Arlington, Texas o n April 14 and subsequently an EZ Money loan store in Arlington on May 2. On M a y 9, Stephens robbed both the Compass Bank and Comerica Bank in A r lin g t o n . After these four robberies, Stephens was arrested during an

u n r e la te d traffic stop on an outstanding warrant for military desertion by the R o c k w a ll police in Texas. A search of the vehicle in Rockwall uncovered a s u i t c a s e full of drugs, $10,962 in cash (later confirmed by the FBI as cash from tw o of the bank robberies), and a black Kel-Tec 9 mm semi-automatic pistol. S t e p h e n s admitted to ownership of the suitcase, but no drug or firearm charges w e r e filed because Stephens agreed to cooperate as a confidential narcotics in fo r m a n t . Undeterred, Stephens committed his fifth and sixth robberies on M a y 28, robbing both the Guaranty Bank in Fort Worth and Compass Bank in A r lin g to n . The seventh robbery occurred when Stephens left Texas to join his a u n t in Georgia where he robbed the Wachovia Bank in Columbus, Georgia. S t e p h e n s was eventually arrested in Georgia, and he confessed to the six Texas ro b b e rie s and one Georgia robbery. These seven robberies involved the use of a p e lle t gun and, allegedly, a handgun. He was charged with a one-count federal in d ic t m e n t for bank robbery in the Middle District of Georgia and a four-count fe d e r a l indictment for bank robbery in the Northern District of Texas. His G e o r g ia indictment was later transferred to Texas for rearraignment and s e n te n c in g . Stephens pleaded guilty to the federal Georgia indictment without 2

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No. 09-10179 a written plea agreement. He also pleaded guilty to count four of the Texas f e d e r a l indictment (the May 28 robbery of Compass Bank) and stipulated to c o u n t three (the May 28 robbery of Guaranty Bank) in his factual resume in e x c h a n g e for dismissal of counts one, two and three in the Texas indictment. The PSR and Sentencing Proceedings T h e PSR calculated Stephens's combined total offense level to be 26 based o n the May 28th Texas robbery and the June 30th Georgia robbery.1 Stephens's c r im in a l history score was calculated at I because he had no prior convictions or c r im in a l history points. The Guidelines range for imprisonment was 63 to 78 m o n th s , but the PSR noted that an upward departure under § 5K2.21 would be a v a ila b le if the court determined by a preponderance of the evidence that S te p h e n s 's three additional uncharged bank robberies and use of a semia u t o m a t ic weapon during the May 9 robberies represented a lower Guidelines r a n g e than normally would apply. The PSR hypothesized that conviction or s tip u la tio n of all the bank robberies (excluding the EZ Money robbery), would h a v e yielded an offense level of 30, not 26, resulting in a range of 97 to 121 m o n t h s of imprisonment. Neither party objected to the PSR.

The PSR calculated a base offense level of 20 pursuant to USSG § 2 B 3 .1 ( a ) , plus two additional levels because the offense involved taking property fr o m a financial institution under § 2B3.1(b)(1). Further, three more levels were a d d e d for Stephens's possessing and brandishing of a dangerous weapon under § 2B3.1(b)(2)(E). The Georgia robbery was calculated with the same base levels a n d enhancements plus an additional level because the loss involved was greater th a n $10,000 but less than $50,000 pursuant to § 2B3.1(b)(7)(B). Then, a m u lt ip l e -c o u n t adjustment under § 2D1.1 arrived at a combined offense level of 2 9 . This number was reduced by three levels for acceptance of responsibility for a combined offense level of 26. 3

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No. 09-10179 I n its February 5, 2009 order, the district court expressed concern about a c c e p t in g the plea agreement because the Government did not plan to prosecute t h e additional robberies or resulting gun offenses under 18 U.S.C. § 924(c). The c o u r t theorized that conviction for the § 924(c) offenses would have resulted in a mandatory 684-month sentence, consecutive to Stephens's robbery sentence. F u r th e r , the court noted that Stephens could not be required to pay restitution t o the banks and stated the sentence should be "significantly above the top of the a d v is o r y guideline range" to adequately address Stephens's criminal conduct. The Government explained its decision not to pursue § 924(c) charges, s ta tin g it did not believe it could prove the offenses beyond a reasonable doubt b e c a u s e (1) Stephens only confessed to all the robberies with the use of a pellet g u n , (2) the May 9 tellers were unable to identify Stephens in a photo lineup, (3) o n e of these tellers had not mentioned Stephens using a gun, (4) the other teller m e n tio n e d Stephens used a silver gun, and (5) a black, not silver, gun was the o n ly weapon confiscated during the May 14 arrest. The Government did advise t h e court it could depart from the Guidelines if it found by a preponderance of t h e evidence that Stephens did use a firearm during the robberies. T h e district court accepted the plea agreement but found that Stephens h a d used a firearm in three of the robberies. The court also found that

S t e p h e n s 's use of the firearm during the EZ Money robbery did not result in a § 924(c) offense because the robbery could not be federally prosecuted. The d is tr ic t court determined that the use of the firearm during the April and May r o b b e r ie s resulted in three § 924(c) gun offenses and that Stephens used a pellet g u n in the later robberies only because his gun had been seized during the May 1 4 arrest. 4

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No. 09-10179 S t e p h e n s objected to these findings and contended that there was not s u ffic ie n t evidence to establish his use of a real gun during the May 2 and May 9 robberies by a preponderance of the evidence because of the contradictory gun d e s c r ip tio n s in the offense reports. Stephens further asserted that even if the c o u r t could find that a real gun was used during those robberies, that the court c o u ld not use the mandatory minimums under § 924(c) to justify an upward d e p a r t u r e because the Guidelines already accounted for the use of any firearms t h r o u g h Guideline enhancements. T h e district court sentenced Stephens to 240 months on each count, to be s e r v e d concurrently, followed by a three-year term of supervised release and o r d e r e d $21,908 in restitution to be paid. The court based its upward departure o n § 5K2.21 to reflect the seriousness of the conduct and for charges dismissed o r not pursued as part of the plea agreement. 2 The court emphasized the

fo llo w in g additional factors: i) Stephens's propensity to violence, as evidence by u s e of pellet and/or firearms during the robberies, ii) the inability to order restit u t io n , and iii) Stephens's commission of three additional robberies following h is May 14 arrest and release. I n addition to the oral reasons given during the sentencing proceedings, t h e district court also provided a written Statement of Reasons ("SOR") for S t e p h e n s 's sentence. The court provided many of the same reasons given at s e n t e n c in g as well as two additional considerations. The SOR reiterated that

The court relied on the charges from the PSR and those admitted by S t e p h e n s "to the extent those other robberies also involved gun offenses, the gun o ffe n s e s were not taken into account in the guideline calculations." 5

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No. 09-10179 t h e court departed upwardly pursuant to § 5K2.21 to reflect the seriousness of th e crimes, the uncharged robberies, and the uncharged § 924(c) offenses. The court calculated that convictions on seven robberies would have r e s u lt e d in a Guideline range of 97 to 121 months and three § 924(c) offenses w o u ld have resulted in a consecutive 684-month term. Moreover, the court noted t h a t the banks suffered combined losses of over $44,000, which could not be c o r r e c t e d by restitution, and concluded that the restitution portion of Stephens's s e n t e n c e did not adequately reflect the actual losses resulting from his criminal c o n d u c t. For the first time, the court also stated that it had upwardly departed u n de r § 4A1.3 because Stephens's criminal history category substantially underr e p r e s e n te d the seriousness of his criminal past and the likelihood that he would c o m m it future crimes. Furthermore, the court indicated that it was basing its d e p a r t u r e from the Guidelines on a hypothetical Guideline calculation d e te r m in e d by the court. This hypothetical guideline was calculated by using, w it h o u t explanation, an offense level of 31 and criminal history score of VI. The r e s u lt in g hypothetical yielded a range of 188 to 235 months of imprisonment. L a s t ly , the court stated that under the advisory Guidelines range, §§ 4A1.3 and 5 K 2 .2 1 , and § 3553(a) factors, a sentence of 240 months, while "a rather s ig n ific a n t upward departure, [was] necessary to reflect the seriousness of the d e fe n d a n t 's actual offense behavior, afford adequate deterrence to criminal c o n d u c t, and protect the public from further crimes of the defendant." S TANDARD S OF REVIEW T h e district court's findings of fact related to sentencing are reviewed for c le a r error. United States v. Castillo, 430 F.3d 230, 238-39 (5th Cir. 2005). We 6

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No. 09-10179 r e v ie w de novo whether the sentence imposed is procedurally sound, including t h e accuracy of the advisory Guideline calculations and explanations for d e v ia tio n s from the Guideline's range. Gall v. United States, 552 U.S. 38, 46 (2 0 0 7 ); United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008). Upward departures that are authorized by the Guidelines are considered a Guideline sentence. See United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th C i r . 2006). Unusually harsh sentences must be explained with sufficient

ju s tific a t io n s because the Guidelines are "the product of careful study based on e x te n s iv e empirical evidence derived from the review of thousands of individual s e n t e n c in g decisions." Gall, 552 U.S. at 46. Because we find procedural errors, w e do not consider the second step of the substantive reasonableness of the s e n te n c e under the factors in 18 U.S.C. § 3553(a). Id. DISCUSSION I . Upward departures for the same conduct under Sections 4A1.3 and 5K2.21 S t e p h e n s challenges the district court's sentencing calculation.3 He

m a in t a in s that § 4A1.3 is a permissible basis for departure on its own or as a p o t e n tia l alternative to vertical departure under § 5K2.21, but contends that the s a m e uncharged conduct cannot serve as a basis for both offense-level departure u n d e r § 5K2.21 and criminal-history departure under § 4A1.3.

Specifically, the lack of explanation in calculating its hypothetical g u i d e l i n e range of 128 to 235 months on an offense level of 31 and criminal h is to r y category of VI when the PSR found the range for the six robberies that in v o lv e d the use of firearms in some of the crimes to be 97 to 121 months, based o n a total offense level of 30 and criminal history category of I. 7

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No. 09-10179 I n United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009), w e held that an upward departure under § 4A1.3 and § 5K2.0 was error. A lt h o u g h the lower court could use § 4A1.3 as a proper basis under the facts for a llo w in g criminal-history enhancements, § 4A1.3 was not a proper basis to in c r e a s e the offense level. See id. Also, § 5K2.0 could not justify a departure of o ffe n s e levels based on the culpability of a prior conviction. See id. at 255. In U n ite d States v. Cade, 279 F.3d 265, 272 (5th Cir. 2002), we held that a d e f e n d a n t 's prior state sentences could not be used as the basis for an upward d e p a r tu r e under § 4A1.3 when it was already considered in the calculation of his o ffe n s e level under § 1B1.1. In Cade, the district court considered Cade's state s e n t e n c e s as relevant conduct to the instant offense. We noted that the district c o u r t could not then use these state sentences in Cade's criminal history score b e c a u se they were used as relevant conduct, which is considered "part of the in s t a n t offense," and not prior sentences as defined by § 4A1.2. We analyzed the ca se of United States v. Hunerlach, 258 F.3d 1282 (11th Cir. 2001), and adopted t h e reasoning of the Hunderlach court that once a district court determines a s e n te n c e as relevant conduct to the instant offense to adjust the offense level, it c a n n o t then be used as a basis for a criminal history category departure under § 4A1.3(a).4

See Cade, 279 F.3d at 271 (citing Hunderlach, 258 F.3d at 1286-87; U n ite d States v. Baird, 109 F.3d 856, 863 n.4 (3d Cir. 1997); United States v. W a s h b u r n , 5 F.3d 1072 (6th Cir. 1995) (unpublished); United States v. Jones, 948 F .2 d 732, 737 n. 11 (D.C. Cir. 1991); United States v. Kim, 896 F.2d 678, 683 (2d C ir. 1990)). 8

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Case: 09-10179

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No. 09-10179 H e r e , there is no dispute between the parties that the district court a t t e m p t e d an upward departure guideline sentence. However, when a court u s e s relevant conduct (uncharged offenses) to upwardly depart by offense levels, it should not then use this conduct to add to the criminal history category. G u tie r re z -H e r n a n d e z dealt with the district judge's procedural error of trying to c h a n g e the offense level when the Guideline justifications only allowed for a c h a n g e in the criminal history category. See 581 F.3d at 254-55. In the instant c a s e , the district court committed procedural error under the first step in Gall in attempting a departure under a Guidelines sentence by increasing Stephens's o ffe n s e level from 26 to 31 and criminal history category from I to VI while ju s tify in g such a departure under the Guidelines based on the same uncharged c o n d u c t under § 4A1.3 and § 5K2.21. II. Section 924(c) Offenses and Mandatory Minimum Sentences A . Factual Findings on Gun Usage S t e p h e n s contends that the district court's determination that Stephens u s e d a real firearm and not a pellet gun in the May 2nd and May 9th robberies c o n s t it u t e s error. As stated previously, factual findings are reviewed for clear e r r o r . See Armstrong, 550 F.3d at 404. The PSR stated that Stephens used a fir e a rm in the May 2nd and May 9th robberies. Stephens did not object to the P S R ; instead, he objected to the sentencing findings on grounds of insufficient e v id e n c e . A district court may consider all relevant, even inadmissible, evidence i n making factual findings. See United States v. Patterson, 962 F.2d 409, 415 (5 th Cir. 1992). A district court may adopt findings in the PSR without

a d d it io n a l inquiry if a sufficient indicia of reliability exists and if the defendant d o e s not present rebuttal evidence or otherwise demonstrate that the 9

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No. 09-10179 in fo r m a tio n is materially unreliable. United States v. Ford, 558 F.3d 371, 377 (5 th Cir. 2009). Stephens furnished the witnesses' statements from the robberies that in d ic a te d that the robber carried "a silver handgun, possibly a revolver," that he w a s brandishing a pistol, and that he had a silver semi-automatic handgun. T h e s e statements corroborated the findings of the PSR that a handgun and not a pellet rifle were used. While Stephens points out that the arrest report

m e n tio n s that a black pistol was confiscated, this error is insufficient to d e m o n s t r a t e clear error as to the finding that Stephens used a firearm during t h e robberies. The district court's determination that Stephens used a firearm d u r in g the May 2nd and May 9th robberies is plausible in light of the record as a whole, and therefore, not clearly erroneous. B . Uncharged 924(c) Offenses in Calculation of Sentence S te p h e n s also complains of the district court's calculation inasmuch as it u s e d uncharged § 924(c) offenses as the basis for a § 5K2.21 departure when it a ls o applied an offense level enhancement under § 2B3.1(b)(2). We find this c a lc u la tio n goes against the policy behind § 2K2.4. Section 2B3.1(b)(2) lays out differing offense level increases based on the u s a g e of the firearm from adding 2 levels up to 7 additional offense levels. M o re o v e r, § 2B3.1(b)(2) can only be applied if a defendant is not convicted of a § 924(c) offense, but if the Government charges and proves a § 924(c) violation, § 2K2.4 prohibits application of this separate offense enhancement. Here, the d i s tr ic t court applied an offense level enhancement in the instant case under § 2 B 3 .1 ( b ) (2 ) (E ). By finding § 924(c) violations and then attempting to stack those e n h a n c e m e n t s under § 5K2.21, the district court committed procedural error. 10

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No. 09-10179 T h e district court did not properly compute an upward departure G u id e lin e sentence.5 Accordingly, the sentence is VACATED, and we REMAND fo r resentencing consistent with our opinion.

We note, without comment, that the district court retains discretion on r e m a n d to make a determination on the propriety of a non-guideline sentence b u t must first compute a proper guideline sentence before attempting to make a proper non-guideline sentence or upward guideline departure otherwise in c o n fo r m i t y with the law. 11

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