USA v. John Blocker

Filing

USA v. John Blocker

Doc. 0

Case: 09-10798

Document: 00511178844

Page: 1

Date Filed: 07/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 20, 2010 N o . 09-10798 S u m m a r y Calendar Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, Plaintiff - Appellee v. J O H N TYRONE BLOCKER, Defendant - Appellant

A p p e a l from the United States District Court fo r the Northern District of Texas

B e fo r e JOLLY, WIENER, and STEWART, Circuit Judges. P E R CURIAM: J o h n Tyrone Blocker was sentenced to his 85-month term of imprisonment a ft e r pleading guilty to one count of bank robbery in violation of 18 U.S.C. § 2 1 1 3 (a ) and after stipulating to a second bank robbery in his factual resume. Blocker argues that the district court improperly calculated his guidelines range. It did so by erroneously adding two points to his criminal history score on the b a s is that he committed the bank robbery while under an active revocation of p r o b a t io n bench warrant. U.S.S.G. § 4A1.1(d). These two points placed Blocker in criminal history category II. When combined with an offense level of 27, the g u id e lin e s range was 78 to 97 months. Without the two points challenged by

Dockets.Justia.com

Case: 09-10798

Document: 00511178844

Page: 2

Date Filed: 07/20/2010

No. 09-10798 B lo c k e r , he falls within criminal history category I, and his guidelines range falls t o 70 to 87 months. Blocker did not challenge his criminal history score in the district court a n d the parties agree that our review is for plain error. Because Blocker has fa ile d to show that the district court's error affected his substantial rights, the d is t r ic t court's judgment is AFFIRMED. I. A t sentencing, the district court adopted the Presentence Report, which c a lc u la t e d Blocker's offense level to be 27 and his criminal history category to be I I . Blocker's criminal history category was raised from I to II by the addition of t w o points under U.S.S.G. § 4A1.1(d). Under § 4A1.1(d), a defendant is assessed t w o points "if the defendant committed the instant offense while under any c r im in a l justice sentence, including probation, parole, supervised release, im p r is o n m e n t , work release, or escape status." The PSR identified an active p r o b a t io n revocation bench warrant from a 1987 conviction as the basis for the § 4A1.1(d) points. Blocker's sole objection to the PSR, however, was that it d e n ie d credit for acceptance of responsibility; this objection was overruled and t h e district court calculated a guidelines range of 78 to 97 months. In the light of the guidelines range adopted by the district court, Blocker r e q u e s te d a downward variance, or a sentence at the low end of the guidelines r a n g e . The district court rejected each request. The court then expressed its b e l ie f that a sentence falling "about the middle of the guidelines range" is a p p r o p r ia te and sentenced Blocker to 85 months of imprisonment. B lo c k e r appeals, arguing for the first time that the two points under § 4 A 1 .1 (d ) were erroneously assessed because the bench warrant, on which the p o i n t s were based, was not for an otherwise countable conviction. U.S.S.G. § 4 A 1 .2 (m ) and (e)(2). He goes on to argue that the district judge's imposition of

2

Case: 09-10798

Document: 00511178844

Page: 3

Date Filed: 07/20/2010

No. 09-10798 s e n te n c e suggests the district court likely would have imposed a lower sentence if he had properly understood the correct guidelines to apply. II. B e c a u s e the issue was not raised at sentencing, we review for plain error. U n d e r the plain error standard, Blocker must show that (1) there was error, (2) t h a t was plain, (3) the error affects substantial rights, and (4) the error seriously a ffe c t s the fairness, integrity, or public reputation of the judicial proceedings. United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). As explained above, the district court added two points to Blocker's c r im in a l history under U.S.S.G. § 4A1.1(d) because the crime was committed w h ile Blocker was under an active probation revocation bench warrant that r e la t e d to a 1987 conviction. A violation warrant of this type is countable under § 4A1.1(d) only if the underlying criminal justice sentence is also countable. U.S.S.G. § 4A1.2(m); see also U.S.S.G. § 4A1.1, cmt., n.4. Prior sentences are c o u n t a b le only if they occurred within the applicable time period--10 or 15 years d e p e n d in g on the type of sentence. U.S.S.G. § 4A1.2(e). Here the prior sentence w a s over 21 years old and so was not countable under § 4A1.1(d); because the u n d e r l y in g sentence was not countable, neither was the active probation r e v o c a t io n bench warrant. C o n s e q u e n t ly , it was error for the district court to assess Blocker two c r im in a l history points under § 4A1.1(d). As our conclusion is reached by a s t r a i g h t fo r w a r d application of the guidelines, the error was also plain. See U n ite d States v. Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir. 2009) (explaining t h a t error is plain where it is "clear or obvious, rather than subject to reasonable d is p u te "). A n error that is plain, though, is not enough. Blocker must also show that t h e error affected his substantial rights by "undermin[ing] confidence in the o u tc o m e ." Fed. R. Crim. P. 52; United States v. Dominguez Benitez, 542 U.S. 74, 3

Case: 09-10798

Document: 00511178844

Page: 4

Date Filed: 07/20/2010

No. 09-10798 8 3 (2004). In cases of miscalculated guidelines ranges, this requires

d e m o n s t r a t in g a "reasonable probability that, but for the district court's m is a p p lic a t io n of the Guidelines, he would have received a lesser sentence." United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). H e r e the district court applied a guidelines range of 78 to 97 months; the c o r r e c t guidelines range was 70 to 87 months. Where, as here, the sentence--85 m o n th s -- fa lls inside both the correct and incorrect guidelines ranges, "we have s h o w n considerable reluctance in finding a reasonable probability that the d is t r ic t court would have settled on a lower sentence." United States v.

C a m p o -R a m ir e z , 2010 WL 2102276, at *3 (5th Cir. 2010) (unpublished) (c o lle c t in g cases with overlapping guidelines ranges); see also United States v. J a s s o , 587 F.3d 706, 714 (5th Cir. 2009); United States v. Jones, 596 F.3d 273, 2 7 7 ­ 7 9 (5th Cir. 2010). In some cases we have denied relief even though the d is t r ic t court chose a sentence at the bottom of the incorrect guidelines range, w h e n that sentence fell at or near the top of the correct guidelines range. See C a m p o -R a m ir e z , 2010 WL 2102276, at 3­4; United States v. Cruz-Meza, 310 F. A p p 'x . 634, 637­38 (5th Cir.2009) (unpublished). We reasoned that there was n o evidence that the district court found the bottom of "any range to be a p p r o p r ia te ." Jasso, 587 F.3d at 714 n. 11. Put simply, where the resulting s e n te n c e falls within both the correct and incorrect guidelines, we do not a s s u m e , in the absence of additional evidence, that the sentence affects a d e fe n d a n t 's substantial rights. See Jones, 596 F.3d at 279. H e r e , Blocker argues that the district court's statement that he be s e n te n c e d "about the middle of the guidelines range" was its primary conclusion, a n d that this is enough to satisfy his burden to show a reasonable probability of a different result. Our past cases make clear that such casual statements from t h e district court are insufficient. See, e.g., Campo-Ramirez, 2010 WL 2102276, a t *1 (refusing to reverse where the district court noted "a sentence at the low 4

Case: 09-10798

Document: 00511178844

Page: 5

Date Filed: 07/20/2010

No. 09-10798 e n d of the range is appropriate"). Such comments may raise a "possibility" of a d iffe r e n t result, but not the requisite "probability." Cruz-Meza, 310 F. App'x. at 637. W e also note that here, as in other cases, the district court considered and r e je c t e d the defendant's request for a downward departure. Moreover, the

d i s t r ic t court did not see fit to sentence Blocker at the low end of the incorrect g u id e lin e s range, making it particularly unlikely that the district court would h a v e imposed a lower sentence had it utilized the proper guidelines range. III. I n sum, the district court erred in its calculation of Blocker's criminal h is t o r y score and so utilized an incorrect guidelines range in determining B lo c k e r 's sentence. This error was plain. However, Blocker has failed to show t h a t this error affected his substantial rights. Accordingly, Blocker's sentence is AFFIRMED.

5