United States v. Washington ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1970
UNITED STATES OF AMERICA,
Appellee,
v.
GEORGE WASHINGTON A/K/A ANTHONY LONG,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.
Michael B. Whipple and Thomas F. Hallett Law Offices on brief
for appellant.
Paula D. Silsby, United States Attorney, and F. Mark Terison,
Senior Litigation Counsel, on brief for appellee.
March 27, 2007
Per Curiam. In United States v. Washington, 434 F.3d 7(1st Cir. 2006), we affirmed the conviction of defendant-appellant
George Washington a/k/a Anthony Long on various drug-trafficking
charges. See id. at 17. We vacated his sentence, however, and
remanded the case for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005). See Washington, 434 F.3d at 17. On
remand, the district court, operating under an advisory guidelines
regime, again sentenced the defendant to a 360-month incarcerative
term. This timely appeal ensued.
The relevant facts are set out in our earlier opinion,
see id. at 9-11, and it is unnecessary to rehearse them here. At
present, the defendant asserts four principal claims of error.
None of them requires extended comment.
The defendant's first claim of error relates to the
district court's application of the career offender guideline. See
USSG §4B1.1. The gist of his claim is that the prior convictions
upon which his career offender designation was based should have
been charged in the indictment and their existence proven to the
jury beyond a reasonable doubt. Instead, the district court,
applying a preponderance of the evidence standard, determined the
existence of those convictions at the disposition hearing. The
defendant asserts that this procedure abridged his Sixth Amendment
rights.
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This claim of error is foreclosed by Supreme Court
precedent. See Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998). We repeatedly have rejected the argument that we
should treat this precedent as impliedly overruled. See, e.g.,
United States v. Miller, ___ F.3d ___, ___ (1st Cir. 2007) [No. 05-
2763, slip op. at 4]; United States v. Bennett, 469 F.3d 46, 51
(1st Cir. 2006); United States v. Coplin, 463 F.3d 96, 104-05 (1st
Cir. 2006); United States v. Richards, 456 F.3d 260, 262 (1st Cir.
2006); United States v. Jiménez-Beltre, 440 F.3d 514, 520 (1st Cir.
2006) (en banc), cert. denied, 127 S. Ct. 928 (2007). Because we
are bound to follow these decisions and to honor the holding of
Almendarez-Torres unless and until the Supreme Court overrules that
holding, we reject the defendant's first claim of error.
Next, the defendant contends that the district court
erred in giving "presumptive weight" to the federal sentencing
guidelines. This contention is not supported by the record. The
district court made it perfectly clear at the disposition hearing
that it did not "place any presumption on the guideline range."
Relatedly, the defendant claims that the district court
at least gave the guidelines substantial weight in the sentencing
calculus and that, in so doing, the court erred. It is true that
the district court gave the guidelines substantial weight but, in
following that course, the court acted altogether appropriately.
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See Jiménez-Beltre, 440 F.3d at 518-19. Consequently, this claim
of error also fails.
Third, the defendant asseverates that certain of the
prior crimes that served as predicates for the career offender
designation were part of a unitary course of conduct and, thus,
should not have been counted separately. This asseveration lacks
force; the issue could have been, but was not, raised in the
defendant's initial appeal and, therefore, is almost certainly by
the boards. See United States v. Bell, 988 F.2d 247, 250 (1st Cir.
1993).
In all events, the convictions that the defendant cites
were for offenses that occurred eleven days apart and have no
readily discernible connection. Under the sentencing guidelines,
"[p]rior sentences imposed in unrelated cases are to be counted
separately." USSG §4A1.2(a)(2). Multiple sentences are considered
"related" only if those sentences "resulted from offenses that (1)
occurred on the same occasion, (2) were part of a single common
scheme or plan, or (3) were consolidated for trial or sentencing."
Id. § 4A1.2, cmt. n.3. The subject offenses do not fit into any of
these categories. Accordingly, the defendant's claim founders.
See, e.g., United States v. Correa, 114 F.3d 314, 317 (1st Cir.
1997); United States v. Elwell, 984 F.2d 1289, 1295 (1st Cir.
1993).
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Finally, the defendant makes a somewhat circuitous attack
on the reasonableness of his sentence, arguing among other things
(i) that a 360-month period of immurement is "grossly
disproportional" when compared with certain of his codefendants'
sentences and (ii) that the sentence is too stiff because the trial
judge incorrectly gauged his "personal characteristics." These
arguments are futile.
The codefendants to whom Washington alludes were, by
reason of cooperation, criminal history, and other differentiating
factors, not similarly situated. Therefore, the defendant's 360-
month sentence cannot be said to have created an unwarranted
sentencing disparity. See United States v. Saez, 444 F.3d 15, 18
(1st Cir. 2006) (holding that a sentencing disparity explained by
material differences in various defendants' criminal histories or
degrees of cooperation is not "unwarranted" within the meaning of
18 U.S.C. § 3553(a)(6)).
As to personal characteristics, the defendant points to
such things as his impoverished childhood, the abuse that he
suffered, and his addiction to drugs. These and other personal
characteristics appear to have been duly considered by the district
court. Given the scope of the correctly calculated guideline
sentencing range,1 the defendant's prolific criminal history, his
1
We note that, in this instance, the defendant's guideline
range was driven primarily by his prior criminal record and status
as a career offender. Giving significant weight to a defendant's
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lack of remorse, and the district court's express finding that
recidivism was "highly predictable" in this case, we cannot say
that the within-the-range sentence imposed is unreasonable. See
Jiménez-Beltre, 440 F.3d at 519 (stating that, ordinarily, the
reasonableness requirement is satisfied when the court offers a
"plausible explanation" for the chosen sentence and reaches a
"defensible overall result").
Saying more would serve no useful purpose. To the extent
that the defendant has proffered other arguments, they are
insufficiently developed, patently meritless, or both. Thus, we
need go no further.
Affirmed.
extensive criminal history is entirely appropriate. See United
States v. LaBonte, 520 U.S. 751, 753 (1997) (explaining that the
career offender guideline implements a specific congressional
mandate) (citing 28 U.S.C. § 994(h)); see also United States v.
Pelletier, 469 F.3d 194, 203-04 (1st Cir. 2006).
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