United States v. Altonio Grave

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Raymond W. Gruender (UNPUBLISHED) [4451632] [16-1196]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1196
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Altonio G. Graves
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 19, 2016
Filed: September 26, 2016
[Unpublished]
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.

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Altonio Graves appeals, challenging his 105-month, concurrent terms of
imprisonment, imposed by the district court1 after Graves pled guilty to two counts
of bank robbery in violation of 18 U.S.C. § 2113(a) and 2.
In January and February 2013, Graves and two others planned and committed
a series of four bank robberies, two in Missouri and two in Illinois. Although the
Missouri robberies were committed first in time, officers arrested Graves for the
Illinois robberies first, and he was convicted on the Illinois robberies prior to his
arrest in the instant case. In April 2015, the district court for the Southern District of
Illinois sentenced Graves to a total of 121 months' imprisonment. In June 2015, a
Missouri grand jury returned an indictment with the instant robbery counts, to which
Graves pled guilty. The Missouri district court reviewed the Presentence
Investigation Report (PSR), which reflected Graves' previous conviction in 1998 for
second-degree murder, first-degree robbery, and two separate counts of armed
criminal action as a result of his participation in a 1997 robbery.2 The PSR likewise
reflected, among others, Graves' prior conviction for the 2013 Illinois robberies. The
Missouri district court sentenced Graves to 105-months' imprisonment, seventy of
which the court directed to run consecutive to any sentence previously imposed in the
Southern District of Illinois.
On appeal, Graves contends the district court erred by sentencing Graves at the
top of the Guidelines range because the court disproportionately weighed the 18
U.S.C. § 3553(a)(1) factors and placed too much weight on Graves' criminal history.
He points out that he actually committed the Illinois robberies after the two Missouri

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
2

Graves was imprisoned until July 2010 for these crimes and was then released
on parole. Graves' parole was discharged in May 2013, and thus he was on parole at
the time he committed the instant crimes.
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robberies at issue in this case. Because of that, he argues that including the Illinois
conviction in his prior criminal conduct for purposes of calculating the suggested
Guidelines sentence, while accurate, gives it too much weight and results in a longer
sentence, and thwarts the purpose of a criminal history enhancement. He focuses on
the proximate timing of these four robberies and claims that had the four robberies
been charged in one indictment, sentencing would have likely gone differently, and
that he is thus at a disadvantage merely because these robberies straddled two
jurisdictions. Conversely, Graves claims the district court gave too little weight to
his nature and characteristics and the other § 3553 factors.
We review the reasonableness of the sentence by first ensuring "that the district
court committed no significant procedural error." Gall v. United States, 552 U.S. 38,
51 (2007). Because Graves did not object at sentencing, we review any proceduralerror arguments only for plain error. United States v. Hill, 552 F.3d 686, 690 (8th
Cir. 2009) (standard of review). Procedural error can include "failing to consider the
§ 3553(a) factors, . . . or failing to adequately explain the chosen sentence." Gall, 552
U.S. at 51. A district court need not categorically rehearse each of the § 3553(a)
factors, and "[i]f a district court references some of the considerations contained in
§ 3553(a), we are ordinarily satisfied that the district court was aware of the entire
contents of the relevant statute." United States v. Richart, 662 F.3d 1037, 1049 (8th
Cir. 2011) (quoting United States v. Perkins, 526 F.3d 1107, 1110-11 (8th Cir.
2008)). We look to "the entire sentencing record, not merely the district court's
statements at the hearing." United States v. Robinson, 516 F.3d 716, 718 (8th Cir.
2008).
We review the substantive reasonableness of Graves' sentence for an abuse of
discretion, considering the totality of the circumstances. Gall, 552 U.S. at 51. "A
district court abuses its discretion when it fails to consider a relevant factor, gives
significant weight to an irrelevant or improper factor, or considers only appropriate
factors but nevertheless commits a clear error of judgment by arriving at a sentence
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that lies outside the limited range of choice dictated by the facts of the case." United
States v. San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011) (quoting United States v.
Jones, 509 F.3d 911, 913 (8th Cir. 2007)). When "the district court explicitly
consider[s] the § 3553(a) factors at the sentencing hearing, [] we 'give due deference
to the district court's decision that the § 3553(a) factors, on a whole, justify' the
sentence." United States v. Sandoval-Sianuqui, 632 F.3d 438, 445 (8th Cir. 2011)
(quoting Gall, 552 U.S. at 51).
After reviewing the entire sentencing record as well as the sentencing colloquy,
this court gives due deference to the district court's statement that it had considered
the § 3553(a) factors in arriving at the imposed sentence. The district court carefully
reviewed the sentencing memorandum submitted on Graves' behalf, along with
several letters written by Graves, and others, in his defense. The court expressly
considered all of the § 3553(a) factors in arriving at a sentence, including the many
strides Graves had taken to improve himself and the consequences he suffered as a
result of his troubled childhood.
At bottom, Graves' criminal history was not weighed too heavily by the district
court, nor was it the sole consideration at sentencing. However, the criminal history
was, quite accurately, an overriding consideration, especially given the violent nature
of the crimes at issue and Graves' commission of the offenses so closely on the heels
of his prison release for a similarly violent robbery. While released from prison and
on parole from a previous murder conviction that Graves claims resulted from a
robbery that went awry when "the gun accidentally discharged" in 1997, Graves
committed four robberies in two states. Because these robberies occurred in two
states, there were two trials in two jurisdictions. However, there was no procedural
error (as Graves concedes) in including the Illinois conviction in the criminal history
consideration during Graves' Missouri sentencing, and Graves provides no basis for
his contention that his sentence would have been less if he had been indicted earlier
on the Missouri crimes. And, more importantly, the court actually exercised great
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discretion and acknowledged the two-jurisdiction issue and generously accounted for
the circumstance of Graves having committed robberies in two states by ordering that
seventy months of the 105-month sentence run consecutive to any sentence imposed
in the Southern District of Illinois, in order to provide "credit . . . for the 30 months
that [Graves] would not otherwise get credit for had these cases been filed together."
There was no error here.
As to the substantive reasonableness of Graves' sentence, because the district
court imposed a sentence within the advisory Guidelines range, we presume it is
reasonable. Sandoval-Sianuqui, 632 F.3d at 444. There is nothing in this record
supporting a conclusion that the district court abused its substantial discretion in
arriving at the sentence imposed.
For the reasons stated herein, we affirm.
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