United States v. Tavon Tarrell Timberlake

Filing

OPINION FILED - THE COURT: RAYMOND W. GRUENDER, DUANE BENTON and BOBBY E. SHEPHERD. Bobby E. Shepherd, Authoring Judge (PUBLISHED) [3918848] [11-2220]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2220
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United States of America,
Appellee,
v.
Tavon Tarrell Timberlake,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Minnesota.
*
*
*
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Submitted: February 13, 2012
Filed: June 6, 2012
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Tavon Timberlake pled guilty to being a felon in possession of a firearm under
18 U.S.C. §§ 922(g) and 924(a)(2). The district court1 granted the Government’s
motion for both an upward departure and an upward variance from Timberlake’s
advisory Sentencing Guidelines range, sentencing Timberlake to 80 months
imprisonment. Timberlake appeals, challenging the district court’s application of the
Guidelines and arguing that his sentence is substantively unreasonable. We affirm.

1

The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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I.
On June 3, 2010, an officer of the Brooklyn Center Police Department
conducted a traffic stop of a vehicle in Brooklyn Center, Minnesota. The officer
initiated the stop because he had been previously informed that the occupants of the
vehicle were attempting to sell handguns. Timberlake was one of the passengers, and
the officer found a loaded .40 caliber semiautomatic pistol in the front waistband of
his pants. Police officers also recovered two other firearms from the vehicle,
including a nine millimeter semiautomatic firearm with a large capacity magazine
containing 24 rounds of ammunition. In addition, the officers found 12.8 grams of
marijuana hidden behind a child’s car seat.
Timberlake was arrested and charged with being a felon in possession of a
firearm. He subsequently entered into a plea agreement with the Government and pled
guilty to the charged offense. In the agreement, both parties concluded that
Timberlake’s base offense level was 14, pursuant to United States Sentencing
Commission, Guidelines Manual, §2K2.1(a)(6). They also agreed that none of the
enhancements of section 2K2.1(b) applied to Timberlake and that Timberlake was
eligible for a two-level reduction for accepting responsibility under section 3E1.1(a).
Accordingly, the parties determined that Timberlake possessed an adjusted offense
level of 12 and a level VI criminal history, thereby establishing an advisory
Guidelines range of 30 to 37 months. However, both parties also reserved the right
to present all relevant evidence at sentencing and to seek a sentence outside the
applicable Guidelines range.
The Probation Office reached a different result than the parties when it
calculated Timberlake’s Guidelines range. Its Presentence Investigation Report

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(“PSR”) calculated Timberlake’s adjusted offense level at 23.2 The PSR also found
that Timberlake had a level VI criminal history and thus determined that the
applicable Guidelines range should be 92 to 115 months imprisonment.
Both Timberlake and the Government objected to the PSR’s recommendation
and requested that the court initially calculate Timberlake’s Guidelines range pursuant
to the plea agreement. Timberlake also argued that he should receive a sentence at or
near the bottom of the Guidelines range of 30 to 37 months because of several
mitigating factors, including a difficult childhood and because his offense was a
“typical” felon-in-possession case. In response, the Government moved for an upward
departure under Guidelines section 4A1.3(a)(1), which allows for a departure where
there is “reliable information indicat[ing] that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes.” USSG
§4A1.3(a)(1). The Government based this request on Timberlake’s extensive criminal
history involving firearms, noting that Timberlake was found with a loaded weapon
during six different arrests in a ten-year period. The Government also moved for an
upward variance under 18 U.S.C. § 3553(a). In particular, the Government argued
that the variance was warranted because: (1) Timberlake’s offense was connected with
drug trafficking; (2) Timberlake’s criminal history was similar to that of an armed

2

The PSR concluded that Timberlake’s base offense level was 20 pursuant to
section 2K2.1(a)(4)(B), which applies when the offense involves a “semiautomatic
firearm that is capable of accepting a large capacity magazine.” This was based on the
PSR’s determination that Timberlake’s relevant conduct in the offense included the
nine millimeter firearm with the large capacity magazine that was found in the vehicle.
The PSR also concluded that a two-level enhancement was warranted because the
offense involved three firearms under section 2K2.1(b)(1); that a four-level
enhancement applied because Timberlake previously possessed a firearm in
connection with a felony drug possession conviction under section 2K2.1(b)(6); and
that Timberlake should receive a three-level reduction for acceptance of responsibility
under section 3E1.1(b).
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career criminal; (3) Timberlake had received more lenient sentences for the same
offense and required a more serious sentence to reflect the seriousness of his offense,
promote respect for the law, and provide just punishment; (4) Timberlake’s high risk
of recidivism required a lengthy prison sentence to deter future crimes and protect the
public; and (5) the policy considerations demonstrated that a Guidelines sentence
would not be sufficient to satisfy the goals of sentencing. The Government requested
that the district court sentence Timberlake to 108 months imprisonment.
At sentencing, the district court adopted the Guidelines calculation offered by
the parties in the plea agreement and rejected the PSR’s calculations, finding a lack
of evidence to establish the applicability of the section 2K2.1(b) enhancements
included in the PSR. In accordance with the Government’s argument, the court
determined that the standard for an upward departure under Guidelines
section 4A1.3(a)(1) had been met. Accordingly, the court adjusted Timberlake’s
offense level from 12 to 20, citing Guidelines section 4A1.3(a)(4)(B), which provides
the method of departing upward when the defendant already has a level VI criminal
history. This placed Timberlake’s Guidelines range at 72 to 87 months, and the court
sentenced Timberlake to 80 months imprisonment. The court stated that it “would
impose the same sentence under section 3553(a) even if it had not granted the
Government’s motion for an upward departure under guidelines section 4A1.3.” After
the district court announced Timberlake’s sentence, Timberlake argued that his
adjusted offense level of 20 should have been reduced by three levels for Timberlake’s
acceptance of responsibility and that his Guidelines range should have been 51 to 63
months. However, the court explained that “the Government moved for both a
variance and an upward departure, and I granted that motion, so . . . part of this change
is an upward departure based on 4A1.3, part of it is a variance, and so I think I’m
going to stick with the sentence that I have announced.” When asked by Timberlake
to explain the basis for the variance, the court stated that any variance was “based on
the same facts that I’m relying upon to upwardly depart.” Timberlake now appeals
his sentence.
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II.
“In reviewing a challenge to a sentence, we ‘must first ensure that the district
court committed no significant procedural error.’” United States v. Dace, 660 F.3d
1011, 1013 (8th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
If we discover no procedural error, we then consider the substantive reasonableness
of the sentence imposed under a deferential abuse-of-discretion standard. United
States v. Black, 670 F.3d 877, 882 (8th Cir. 2012).
Here, Timberlake contends that the district court erred procedurally by not
performing an incremental analysis in departing upward under Guidelines section
4A1.3. Timberlake also contends that his sentence was substantively unreasonable.
We address each of these arguments in turn.
A.
Timberlake first argues that the district court failed to properly apply the
upward departure provisions of Guidelines section 4A1.3 and inadequately explained
the degree of departure. Specifically, Timberlake argues that the court procedurally
erred by failing to follow the section 4A1.3 instruction to move “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” when it changed Timberlake’s
offense level from 12 to 20. USSG §4A1.3(a)(4)(B). Usually, “[i]n reviewing a
sentence for significant procedural error, we review a district court’s factual findings
for clear error and its interpretation and application of the guidelines de novo.”
United States v. Bryant, 606 F.3d 912, 918 (8th Cir. 2010). But “[i]f a defendant fails
to timely object to a procedural sentencing error, the error is forfeited and may only
be reviewed for plain error.” United States v. Phelps, 536 F.3d 862, 865 (8th Cir.
2008). As an initial matter, the parties disagree as to whether Timberlake properly
objected to the district court’s sentencing analysis.
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However, the standard of review does not present Timberlake’s greatest
obstacle in this appeal. We have held that any procedural error in granting an upward
departure is harmless when the district court makes it clear that the sentence is also
based on an upward variance under the section 3553(a) factors. See United States v.
Johnson, 572 F.3d 449, 455 (8th Cir. 2009) (concluding that any error in assessing an
upward departure was harmless and affirming the sentence “based on the district
court’s alternative decision to impose an upward variance based on the § 3553(a)
factors”); United States v. Sanchez-Martinez, 633 F.3d 658, 660 (8th Cir. 2011)
(finding any procedural error harmless “because the record is clear that the district
court intended to impose the same sentence . . . based on 18 U.S.C. § 3553(a)”). Here,
the district court explained that had it not granted the Government’s motion for an
upward departure, it would still have varied upward to a sentence of 80 months
imprisonment under the section 3553(a) factors. The court explicitly referenced the
section 3553(a) factors and concluded that a sentence of 80 months imprisonment was
appropriate and reasonable in light of those factors. From our review of the
sentencing transcript and the written explanation, it is evident that the district court
specifically relied on factors (1) and (2) of section 3553(a) by noting Timberlake’s
frequent firearm convictions and his high likelihood of recidivism. Regardless of the
standard of review and even assuming the court erred procedurally in its application
of Guidelines section 4A1.3, any such error was harmless because of the court’s
alternative reliance on an upward variance.
B.
Having determined that any possible procedural error was harmless, we now
turn to Timberlake’s argument that his 80 month sentence is substantively
unreasonable. “‘We review the substantive reasonableness of a defendant’s sentence
for abuse of discretion.’” United States v. Wilcox, 666 F.3d 1154, 1156 (8th Cir.
2012) (citation omitted). “A sentencing court abuses its discretion if it fails to
consider a relevant factor that should have received significant weight, gives
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significant weight to an improper or irrelevant factor, or considers only the
appropriate factors but commits a clear error of judgment in weighing those factors.”
United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007).
Timberlake argues that his sentence is unreasonable because the district court
placed too much emphasis on Timberlake’s criminal history and the need for
punishment while also undervaluing “important mitigating factors.” Timberlake cites
five specific mitigating factors: (1) an unstable and tragic childhood; (2) an early
exposure to firearms in a dangerous neighborhood; (3) his mother’s illness; (4) his
daughter’s frequent trips to foster care without a father to look after her; and (5) his
dedication to rehabilitating himself as evidenced by his completion of an anger
management course and a drug abuse education course.
Although the district court did not specifically refer to the factors listed above
in imposing its sentence, Timberlake raised these issues in his sentencing position
memorandum to the district court and at the sentencing hearing. We therefore
presume that the district court considered these mitigating factors and rejected them.
See Wilcox, 666 F.3d at 1157. Moreover, the district court stated that it had
considered “the nature and circumstances of the instant offense, as well as the history
and the characteristics of the defendant, including his numerous convictions for drug
and gun offenses,” and ultimately found that “a sentence of 80 months is sufficient but
not greater than necessary to afford adequate deterrence to future criminal conduct.”
At sentencing, the Government discussed Timberlake’s multiple convictions and the
failure of more lenient, incremental punishment to prevent recidivism. In pronouncing
its sentence, the court emphasized that the instant offense was Timberlake’s fifth
conviction for the illegal possession of a firearm. The court’s emphasis on the
defendant’s criminal history and the nature of the offense falls within a sentencing
court’s “substantial latitude to determine how much weight to give the various factors
under § 3553(a).” United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir.

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2009). Accordingly, we find no abuse of discretion in the court’s decision to impose
a sentence of 80 months imprisonment.
III.
We affirm the sentence imposed by the district court.
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