United States v. Washington ( 2006 )


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  •                Not For Publication in West's Federal Reporter
    Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
    United States Court of Appeals
    For the First Circuit
    No. 05-2569
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    STEVEN WASHINGTON,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. D. Brock Hornby, U.S. District Judge]
    Before
    Selya, Lynch and Howard,
    Circuit Judges.
    James S. Hewes on brief for appellant.
    Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
    United States Attorney, on brief for appellee.
    June 28, 2006
    Per Curiam.     Steven Washington, who pled guilty to
    distributing heroin, in violation of 
    21 U.S.C. § 841
    (a)(1), was
    sentenced, after United States v. Booker, 
    543 U.S. 220
     (2005), to
    168 months' imprisonment, the bottom of the applicable Guideline
    range.       The length of his sentence was based primarily on his
    "career offender" status under USSG § 4B1.1(b)(C).1               In this appeal
    from       his   sentence,     Washington   argues   that   his    sentence   is
    unreasonably high in light of (i) the relatively small amount of
    heroin involved (less than one gram) and (ii) the district court's
    failure adequately to explain the sentence with respect to the
    provisions of 
    18 U.S.C. § 3553
    (a), particularly the "parsimony"
    provision.        After carefully reviewing the record and the parties'
    briefs, we conclude that the sentence is not unreasonable and was
    adequately explained.
    A sentencing judge is "not obliged to give a lower
    sentence because of the quantity," United States v. Saez, 
    444 F.3d 15
    , 19 (1st Cir. 2006) (emphasis added), particularly where, as
    here, other considerations weigh in the opposite direction, see
    1
    It is undisputed that Washington qualified for career
    offender status because he committed the instant offense when he
    was at least 18 years old (he was 33), the instant offense is a
    controlled substance offense (distribution of heroin), and he had
    at least two prior felony convictions of either a crime of violence
    or a controlled substance offense (one for a crime of violence--
    robbery--and one for a controlled substance offense--manufacture,
    delivery, and possession of cocaine with intent to distribute).
    That status resulted in an offense level of 30, rather than 10; a
    criminal history category of VI rather than V; and a Guideline
    range of 168 to 210 months, rather than 21 to 27 months.
    -2-
    generally United States v. Sagendorf, 
    445 F.3d 515
    , 518 n.2 (1st
    Cir. 2006) (per curiam) (noting that "'the requirement that the
    sentencing judge consider a . . . factor that may cut in a
    defendant's favor does not bestow on the defendant an entitlement
    to receive any particular "credit" under that factor'" (citation
    omitted)).   Here, the judge expressly acknowledged the severity of
    the sentence in relation to the small quantity of drugs involved
    and concluded that a long sentence was warranted in light of
    Congress's express intent that career offenders be sentenced "to a
    term of imprisonment at or near the maximum term authorized."          
    28 U.S.C. § 994
    (h).      Any resulting disproportionality between the
    sentence and the drug quantity "is one that results from the policy
    choices   made   by   Congress   and   implemented   by   the   Sentencing
    Commission."     United States v. Caraballo, 
    447 F.3d 26
    , 27-28 (1st
    Cir. 2006) (per curiam).    The district court therefore permissibly
    declined to impose a below-Guidelines sentence on that basis. Id.;
    cf. United States v. Jiménez-Beltre, 
    440 F.3d 514
    , 520 (1st Cir.
    2006) (en banc) (finding it permissible to sentence defendant as a
    career offender even if his prior offenses were relatively minor).
    The court also tempered the consequences of Washington's
    career offender status by sentencing him to the bottom of the
    applicable Guideline range.      The resulting fourteen-year sentence,
    which the court characterized as "very severe," was still more than
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    four years below the top of the applicable Guideline range and six
    years below the twenty-year statutory maximum.
    In rejecting Washington's plea for a below-Guidelines
    sentence, the district court also expressly considered several
    factors set forth in 
    18 U.S.C. § 3553
    (a).                Specifically, the court
    considered       and     rejected   Washington's     argument    that   a     below-
    Guidelines sentence was necessary to avoid unwarranted disparity
    with the suspended sentence given to his accomplice after a state-
    court       conviction    arising   from    the   same   incident.      The   court
    reasoned that, even if the accomplice was more culpable (a point on
    which the parties disagreed but which the court did not resolve),
    Washington's harsher sentence was warranted by his more serious
    criminal history.2           The district court further opined that the
    disparity to be avoided was among sentences in the federal system,
    not between state and federal sentences.                   Without deciding the
    latter point, see United States v. Wilkerson, 
    411 F.3d 1
    , 10 n.**
    (1st Cir. 2005), we agree with the district court that a sentencing
    disparity       explained     by    differences     in    defendants'    criminal
    histories or degrees of cooperation is not "unwarranted" within the
    meaning of 
    18 U.S.C. § 3553
    (a)(6), see Saez, 
    444 F.3d at 18
    .
    The district court also expressly considered and rejected
    Washington's        arguments       that    the    purposes     of   sentencing,
    2
    The record further indicates that the accomplice's sentence
    may have taken into account her cooperation with local law
    enforcement authorities.
    -4-
    particularly the need to afford adequate deterrence and protect the
    public    from   future       crimes    by     this   defendant,       
    18 U.S.C. § 3553
    (a)(2)(B),(C), could be served by a lesser sentence. In that
    regard, the district court noted that despite the "very severe
    sentences" that Washington received for his prior offenses, soon
    after he was released from prison on those sentences he continued
    to commit other serious crimes.                 For that reason, the court
    concluded that an even more severe sentence was necessary this
    time.    The district court also took into account Washington's need
    for   educational       and   vocational      training   and   substance     abuse
    treatment,    
    id.
       §    3553(a)(2)(D),       by   encouraging   him    to   "take
    advantage of every program in prison" and recommending that he be
    enrolled in a comprehensive drug treatment program.
    Although the district court did not expressly cite the
    "parsimony" provision, 
    18 U.S.C. § 3553
    (a), the above-described
    comments evidence its consideration of the underlying principle
    that a sentence should be sufficient but no higher than necessary
    to meet the statutory goals.           Nor is there any indication that the
    sentence was designed to serve some other, impermissible, purpose.
    See United States v. Scherrer, 
    444 F.3d 91
    , 95 (1st Cir. 2006) (en
    banc).    Accordingly, we find no error in the court's failure to
    incant the parsimony provision per se. See United States v. Dixon,
    No. 05-1559, 
    2006 WL 1452687
    , at *9 (1st Cir. May 26, 2006).
    -5-
    Similarly, although the court did not expressly address
    other potentially mitigating factors proffered by Washington at
    sentencing--including his troubled childhood and his efforts at
    post-conviction rehabilitation while in prison--we infer that the
    court was unpersuaded that those factors outweighed the stated
    grounds for declining to impose a below-Guidelines sentence.   See
    Scherrer, 
    444 F.3d at 94
    .    No further explanation was required.
    Cf. United States v. Smith, 
    445 F.3d 1
    , 4 (1st Cir. 2006) (stating
    that "'the farther the judge's sentence departs from the guidelines
    sentence . . . the more compelling the justification . . . the
    judge must offer'" (citation omitted)).
    Accordingly, the sentence is affirmed.
    -6-