United States v. Mays ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-1366
v. (D.C. No. 1:15-CR-00467-RM-1)
(D. Colorado)
DE’SHAUGHN JAHMALL MAYS,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
De’Shaughn Jahmall Mays appeals the district court’s imposition of a
54-month sentence after he pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Mr. Mays argues his sentence, which falls above
the applicable U.S. Sentencing Guidelines range of 30 to 37 months, is substantively
unreasonable. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
On October 5, 2015, Mr. Mays was stopped by police for driving a stolen
vehicle. During a search of the vehicle, the police found a loaded handgun, which
also was stolen. In light of Mr. Mays’s prior felony convictions, the United States
government charged him with one count of unlawful possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Mr. Mays pled guilty to the indictment.
After the plea, a probation officer prepared a presentence report (“PSR”) for
Mr. Mays. The PSR assigned Mr. Mays a total offense level of 19 and a criminal
history category of V, which together yielded a U.S. Sentencing Guidelines
(“Guidelines”) range of 57 to 71 months’ imprisonment. Mr. Mays objected to the
PSR, arguing for reasons not relevant here that his offense level should be 13. He
also moved for a variant sentence, asking that the district court sentence him to 36
months in prison followed by three years of supervised release.
At the sentencing hearing, the district court sustained Mr. Mays’s objection
and recalculated his total offense level as 13. Combining that figure with Mr. Mays’s
criminal history category of V, the district court arrived at a new Guidelines range of
30 to 37 months. The court then heard from the government, which argued for a 66-
month sentence; from defense counsel, who argued for the same 36-month sentence
already requested in the variance motion; and from Mr. Mays, who spoke on his own
behalf in mitigation. After a lengthy discussion of its reasoning with respect to the
18 U.S.C. § 3553(a) sentencing factors, the district court determined that an upward
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variance was appropriate and sentenced Mr. Mays to 54 months in prison and three
years of supervised release. Mr. Mays now appeals.
II. DISCUSSION
Mr. Mays’s sole argument on appeal is that his 54-month sentence is
substantively unreasonable. Specifically, Mr. Mays claims the district court
“unreasonably weighed the factors in 18 U.S.C. § 3553(a)” by overemphasizing his
adolescent behavior and dated convictions while undervaluing his life improvements
and mental-health issues. Thus, according to Mr. Mays, the district court abused its
discretion in imposing a 54-month sentence. We disagree.
We review sentences for substantive reasonableness under a deferential abuse-
of-discretion standard. United States v. Gordon, 710 F.3d 1124, 1160 (10th Cir.
2013). “In considering whether a defendant’s sentence is substantively reasonable,
we examine whether the length of the sentence is reasonable given all the
circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013) (internal quotation
marks omitted). A district court may impose a sentence outside the applicable
Guidelines range “so long as it does not do so arbitrarily and capriciously.” United
States v. Worku, 800 F.3d 1195, 1208 (10th Cir. 2015). In reviewing an above-
Guidelines sentence, “we ‘may consider the extent of the deviation, but must give
due deference to the district court’s decision that the 18 U.S.C. § 3553(a) factors, on
a whole, justify the extent of the variance.’” Id. at 1207 (alteration omitted) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). That we “might reasonably have
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concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” Gall, 552 U.S. at 51. Ultimately, we will reverse a sentence as
substantively unreasonable only “if, in light of the § 3553(a) factors, it ‘exceeds the
bounds of permissible choice, given the facts and the applicable law.’” United States
v. Lucero, 747 F.3d 1242, 1250–51 (10th Cir. 2014) (quoting Chavez, 723 F.3d
at 1233).
Here, we conclude the district court acted within its discretion in varying
upward from the 30- to 37-month Guidelines range and imposing a 54-month
sentence. The relevant § 3553(a) sentencing factors include “(1) the nature and
circumstances of the offense and the history and characteristics of the defendant”;
and “(2) the need for the sentence imposed . . . to reflect the seriousness of the
offense, to promote respect for the law, . . . to afford adequate deterrence to criminal
conduct[,] . . . [and] to protect the public from further crimes of the defendant.”
18 U.S.C. § 3553(a)(1)–(2). Contrary to Mr. Mays’s assertion, the district court’s
balancing of these factors was not “manifestly unreasonable.”
Mr. Mays first argues the district court abused its discretion in concluding that
he is a dangerous person “based only on [his] conduct from ten or more years [ago]”
and that this dangerousness outweighed all countervailing considerations and
justified the sentence imposed. But the record belies this characterization of the
district court’s reasoning. For one, the district court did not conclude Mr. Mays is
dangerous “based only on [his] life up to 2006.” While it is true that the district court
found Mr. Mays’s 2006 burglary conviction to be “particularly egregious,” and
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considered his 2006 robbery conviction and juvenile history, the court also
considered Mr. Mays’s recent statements about having homicidal “fantasies” or
“thoughts” regarding a “love rival”, his “discipline[] for assaults” in prison, and
indicia of his continued gang affiliation. The district court made clear that it was
focusing on “a pattern [of behavior] that extends across [Mr. Mays’s] life.” Cf.
United States v. Naramor, 726 F.3d 1160, 1172 (10th Cir. 2013) (affirming
upward-variant sentence of statutory maximum and finding reasonable the district
court’s determination that defendant was dangerous based in part on his violent
history, where defendant’s criminal history consisted of a single assault conviction).
But more importantly, dangerousness was not the only aggravating factor the
district court considered. Mr. Mays was caught with a stolen gun while driving a
stolen car. He also had a more recent, 2012 felony conviction for forgery. Critically,
too, he was recorded making jailhouse phone calls to his then-girlfriend in which he
asked her “to find his younger brother or one of his friends, possibly a juvenile, to
come to court to take responsibility for the gun . . . [and] to say that [Mr. Mays] did
not know that the gun was in the car.” This attempted scheme came to fruition when,
during one of Mr. Mays’s hearings, “a woman identifying herself as [his] wife came
to court . . . and told . . . [a] District Attorney that the gun did not belong to [Mr.
Mays] and instead belonged to a male who had entered the courtroom with her.” The
district court reasonably found this conduct to be “a particularly egregious 3553(a)
factor” because “it speak[s] in the direction of obstructive conduct” and shows Mr.
Mays does not “respect the law.” As the district court observed, “[t]o have somebody
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else obtain a conviction” is inconsistent with Mr. Mays’s professed goal of being “on
a law-abiding path.”
We also disagree with the notion that the district court undervalued Mr.
Mays’s efforts to turn his life around and his history of mental-health issues. As the
district court recognized, “the period of time in which we’re talking about [Mr.
Mays], quote/unquote, doing well, is like three months.” But the “reality,” as the
court put it, is that “for eight of the last ten years [Mr. Mays] has been in some form
of custody or another,” largely because of repeated parole violations and his “getting
arrested over and over again.” All in all, “[t]here is simply a long-standing, never-
ending series of problems with the law.” Moreover, the district court found that Mr.
Mays’s sympathetic explanations for his current crime and his claims of having
turned his life around were undermined by his credibility issues, an assessment with
which his psychiatrist agreed. Cf. Gall, 552 U.S. at 51 (explaining that a district
court’s superior ability to “make[] credibility determinations” is one of the reasons
appellate courts should accord deference to a district court’s treatment of § 3553(a)
factors). And the district court did accept Mr. Mays’s mental-health issues as a
mitigating factor; it simply found that the aggravating considerations warranted an
upward departure from the Guidelines range nonetheless.
“Our role is not to second guess the district court’s treatment of the § 3553(a)
factors.” United States v. Vasquez-Alcarez, 647 F.3d 973, 978 (10th Cir. 2011). The
record here is replete with examples of the district court carefully balancing those
factors with many different facets of Mr. Mays’s history and thoughtfully considering
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its need to achieve the purposes of sentencing. In the end, “we are not persuaded that
the district court’s judgment fell outside the range of rationally permissible choices
before it.” United States v. Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010)
(internal quotation marks omitted). We find neither error nor abuse of discretion in
the sentence imposed.
III. CONCLUSION
The district court did not unreasonably balance the 18 U.S.C. § 3553(a) factors
or otherwise abuse its discretion in sentencing Mr. Mays to 54 months in prison. We
therefore AFFIRM the sentence.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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