United States v. Dennis Mobley

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, Roger L. Wollman and Duane Benton (UNPUBLISHED) [4463811] [15-3711]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3711
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dennis Augustus Keith Mobley
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 17, 2016
Filed: October 28, 2016
[Unpublished]
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Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
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PER CURIAM.
Dennis Augustus Keith Mobley pleaded guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The

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district court1 sentenced him to 60 months’ imprisonment. Mobley appeals, arguing
that the district court failed to adequately explain its reasons for imposing an upward
departure. We affirm.
In early 2014, a joint task force began investigating a gang known as the 10z
gang, which had been involved in illegal firearms possession and other crimes in
Minneapolis, Minnesota, and was engaged in a violent feud with a rival gang. On
March 6, 2015, during the course of the investigation, officers received information
that Mobley was in possession of a firearm. At the time, Mobley was a felon
prohibited from possessing firearms and was awaiting sentencing on a state felony
conviction for aiding an offender. Specifically, Mobley had driven the get-away
vehicle for an individual who had fired six rounds into two vehicles occupied by both
adults and children and who later pleaded guilty to attempted murder. Officers found
five individually wrapped bags of cocaine in the get-away vehicle.
On March 6, officers located Mobley while he was driving a vehicle. The
officers initiated a traffic stop, pursued Mobley on foot when he fled the vehicle, and
eventually apprehended him. Mobley told the officers that gang members were upset
with him for a shooting incident. The officers found in Mobley’s vehicle a loaded .40
caliber, semiautomatic pistol with a round in the chamber and rounds in the magazine.
Mobley’s presentence report (PSR) set forth his lengthy criminal history, which
included several juvenile adjudications, numerous misdemeanors, and the following
four adult felony convictions: first-degree property damage, being a prohibited person
in possession of a firearm, third-degree drug possession, and the aiding-an-offender
offense set forth above. The first offense occurred in December 2010, when Mobley
pointed a gun at his brother (whose daughter was nearby) and broke the side windows

1

The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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of his brother’s two cars. The second offense occurred a few months later. An officer
tried to initiate a traffic stop after Mobley drove through a red light. Mobley sped
away and later fled on foot, discarding a loaded .25 caliber handgun as he ran. After
being apprehended, Mobley admitted that he was a member of the 10z gang and said
that he was being chased by members of a rival gang. While the first two cases were
pending, Mobley was arrested for possession of cocaine and ecstasy. Mobley pleaded
guilty to the three felonies and served concurrent sentences. He was released from
prison in December 2013, following which he committed the aiding-an-offender
offense in August 2014.
The PSR determined that Mobley’s total offense level was 12, that his criminal
history category was VI, and that his advisory sentencing range under the U.S.
Sentencing Guidelines Manual (U.S.S.G. or Guidelines) was 30 to 37 months’
imprisonment. The government’s sentencing memorandum argued that a criminal
history category of VI substantially under-represented Mobley’s criminal history,
primarily because it failed to take into account the violent and dangerous nature of
Mobley’s offense conduct for aiding an offender. The government requested an
upward departure under U.S.S.G. § 4A1.3(a), suggesting that Mobley’s offense level
be increased by 5 and that the district court impose a sentence at the top of the
adjusted advisory Guidelines range of 51 to 63 months’ imprisonment. Alternatively,
the government argued that the district court should vary upward to a 63-month
sentence.
Before imposing sentence, the district court discussed Mobley’s extensive
criminal history, noting that “[t]he basic themes are guns . . . and drugs.” The district
court did not state that it was applying an upward departure under U.S.S.G.
§ 4A1.3(a), but indicated that a sentence within the advisory Guidelines range would
be “a real understatement . . . of what the right sentence is here” and thereafter
imposed a 60-month sentence. The district court indicated in its post-sentencing

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statement of reasons that it had departed from the advisory Guidelines range on the
basis of § 4A1.3(a), criminal history inadequacy.
Mobley argues that the district court failed to explain its reasons for imposing
an upward departure.2 Because Mobley did not object to the district court’s
explanation, we review for plain error. See United States v. Walking Eagle, 553 F.3d
654, 657 (8th Cir. 2009) (reviewing the adequacy of a district court’s explanation of
its reasons for imposing an upward departure for plain error because defendant had
failed to object and thus “the district court had no opportunity to clarify its comments
or to correct any potential error in the first instance” (quoting United States v.
M.R.M., 513 F.3d 866, 870 (8th Cir. 2008))).
Guidelines § 4A1.3(a)(1) permits an upward departure “[i]f reliable information
indicates that the defendant’s criminal history category substantially under-represents
the seriousness of [his] criminal history or the likelihood that [he] will commit other
crimes.” We have said that when a district court imposes an upward departure under
§ 4A1.3(a)(1), it “first must proceed along the criminal history axis of the sentencing
matrix, comparing the defendant’s criminal history with the criminal histories of other
offenders in each higher category.” United States v. Johnson, 648 F.3d 940, 943 (8th
Cir. 2011) (quoting Walking Eagle, 553 F.3d at 657). In cases like this one, in which
the defendant’s criminal history places him in category VI, a district court may
nevertheless impose an upward departure under § 4A1.3(a) if a departure is warranted
by the extent and nature of the defendant’s criminal history. See U.S.S.G.
§ 4A1.3(a)(4)(B). In such cases, “the court should structure the departure by moving
incrementally down the sentencing table to the next higher offense level in Criminal
2

Mobley also argued that the district court improperly relied on his criminal
history when it varied above the advisory Guidelines range and that his sentence is
substantively unreasonable because the district court gave significant weight to the
improper factor of Mobley’s criminal history. The district court applied an upward
departure based on U.S.S.G. § 4A1.3(a), however; it did not impose a variance.
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History Category VI until it finds a guideline range appropriate to the case.” Id.
Although the procedure set forth in our case law and the Guidelines might suggest
otherwise, “[t]his process does not ‘require a ritualistic exercise in which the
sentencing court mechanically discusses each criminal history category [or offense
level] it rejects en route to the category [or offense level] that it selects.’” Walking
Eagle, 553 F.3d at 657 (quoting United States v. Azure, 536 F.3d 922, 931 (8th Cir.
2008)).
We find no plain error in the district court’s explanation of its decision to depart
upward. The district court noted that Mobley had taken “a very difficult road with
respect to the criminal justice system,” with all of his adult felony offenses involving
guns and drugs. The district court discussed each those offenses, finding special
significance in the circumstances of Mobley’s aiding-an-offender offense. After
taking into account Mobley’s extensive criminal history, the repeated nature of his
drug- and firearm-related offenses, and the fact that Mobley committed the federal
offense while awaiting sentencing on a state offense that involved aiding an offender
who committed attempted murder, the district court ultimately departed upward,
because “[t]he guidelines [we]re not quite right” and because “the guidelines [we]re
a real understatement of . . . what the right sentence is here.”
We conclude that the district court’s otherwise adequate explanation of
departing upward was not undercut by its lack of mention that it had moved
incrementally down the sentencing table to find the appropriate advisory Guidelines
range. See Walking Eagle, 553 F.3d at 658 (“Although the district court did not
specifically mention that it had considered each intermediate criminal history
category, its findings were adequate to explain and support the departure in this
particular case.” (quoting United States v. Collins, 104 F.3d 143, 145 (8th Cir.
1997))).

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Mobley also argues that the district court failed to justify the imposition of a 5offense-level upward departure. Mobley relies on several of our cases that were
decided at a time when we reversed district courts for imposing sentences outside the
advisory Guidelines range in the absence of what we considered to be a justification
for the extent of deviation. For example, we required that any “extraordinary
reduction . . . be supported by extraordinary circumstances.” See, e.g., United States
v. Likens, 464 F.3d 823, 825 (8th Cir. 2006) (citing United States v. Dalton, 404 F.3d
1029, 1033 (8th Cir. 2005)). We were then told by the Supreme Court that the “rule
requiring ‘proportional’ justifications for departures from the Guidelines range is not
consistent with [the Court’s] remedial opinion in United States v. Booker, 543 U.S.
220 (2005).” Gall v. United States, 552 U.S. 38, 46 (2007). In the present case, the
district court provided sufficient justification for the upward departure and imposed
a substantively reasonable sentence. See Johnson, 648 F.3d at 944 (holding that the
district court’s explanation of its decision to impose an upward departure provided
“sufficient indicia of why the intermediary categories [were] inappropriate” (quoting
Azure, 536 F.3d at 932)).
The sentence is affirmed.
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