United States v. Elders ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 25, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-6257
v. (D.C. No .5:09-CR-00073-R-1)
(W.D. of Okla.)
KEITH LONNIE ELDERS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Keith Lonnie Elders, a North Carolina state prisoner, 1 was sentenced to 120
months’ imprisonment and 60 months’ supervised release after pleading guilty to
four fraud counts related to check fraud. The sentence represents an upward
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Elders is currently serving a North Carolina state sentence scheduled to
expire in October 2012. He will be remanded into federal custody to serve his
federal sentence at that time.
variance from the United States Sentencing Guidelines (USSG) range of 57 to 71
months applicable to Elders’s criminal history category and offense level. On
appeal, Elders claims his sentence is procedurally and substantively unreasonable.
We AFFIRM the district court’s sentence.
I. Background
In October 2007, Elders obtained a box of blank checks bearing a bank
account number assigned to Oklahoma State University. Elders used the checks
to pay for groceries, hotel rooms, phone bills, and a down payment on a car. He
opened a savings account with the checks, from which he later withdrew cash.
Finally, he sent checks to a variety of acquaintances, including an ex-girlfriend
and his estranged son. Many of these checks were rejected as fraudulent, but
checks totaling $17,063.84 were actually accepted. Had all Elders’s checks been
accepted, the total loss to all parties would have been $250,586.61.
Elders was eventually caught and indicted on one count of wire fraud and
three counts of possessing and uttering counterfeit securities in violation of 18
U.S.C. §§ 513(a) and 1343. He pleaded guilty to all counts.
Elders’ presentence report (PSR) calculated his USSG offense level as 18,
and his criminal history score as 25, placing him in criminal history category VI.
Based on these totals, his guideline sentence range was 57 to 71 months. The
PSR noted that an upward variance from this range might be warranted because
many of Elders’s prior convictions were excluded from his criminal history score.
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At his sentencing hearing, the district court relied on Elders’s extensive
criminal history, including 47 prior convictions, as grounds for an upward
variance. Citing the need to protect society from Elders’s almost-constant
criminal behavior, the court sentenced him to 120 months’ imprisonment and 60
months’ supervised release and ordered him to pay restitution.
II. Discussion
We review a district court’s sentencing decisions for an abuse of discretion.
United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). A district court
abuses its discretion “when it renders a judgment that is arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Lewis, 594 F.3d 1270,
1277 (10th Cir.), cert. denied, 130 S. Ct. 3411 (2011). This standard also applies
when we consider a sentence outside the guidelines range. United States v.
Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008).
When reviewing a challenge to a sentence, we seek to determine whether
the sentence is reasonable. United States v. Kristl, 437 F.3d 1050, 1053 (10th
Cir. 2006). To make this determination, we first consider whether the sentence is
procedurally reasonable—that is, whether the district court properly applied the
Sentencing Guidelines. Id. We then determine whether the sentence is
substantively reasonable in light of the factors listed in 18 U.S.C. § 3553(a). Id.
at 1055. These factors include “the nature of the offense and the characteristics
of the defendant, as well as the need for the sentence to reflect the seriousness of
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the crime, to provide adequate deterrence, to protect the public, and to provide the
defendant with needed training or treatment.” Id. at 1053.
A. Procedural Reasonableness
Elders argues his sentence was procedurally unreasonable because his
sentencing judge failed to adequately explain his departure from the Guidelines.
A sentence is procedurally unreasonable when a sentencing court improperly
calculates the guidelines range, treats the Guidelines as mandatory, fails to
consider § 3553(a), bases a sentence on clearly erroneous facts, or inadequately
explains the chosen sentence, including inadequately explaining a departure from
the guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). An
explanation is adequate when it allows “for meaningful appellate review” and
“promote[s] the perception of fair sentencing.” Id. at 50. A court must also
“provide reasoning sufficient to support the chosen variance.” United States v.
Smart, 518 F.3d 800, 807 (10th Cir. 2008).
The government contends that Elders did not raise this objection before the
district court, and thus we are limited to reviewing his claim for plain error.
United States v. Begaye, 635 F.3d 456, 470 (10th Cir. 2011). Elders contends he
preserved this claim for review, but provides no citation to the record supporting
his assertion. Our review of the transcript of his sentencing hearing and the
record below reveals no such objection. Therefore, we review his claim for plain
error. To be plain error, Elders must show “(1) an error, (2) that is plain, which
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means clear or obvious under current law, and (3) that affects substantial rights.”
Id. Even if Elders satisfies these criteria, we may correct the error only “if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.Elders claims the sentencing court’s explanation was deficient primarily
because the district court did not explain why a sentence of almost double the
guidelines range was appropriate, or how it was sufficient but no greater than
necessary to achieve the statutory goals of sentencing.
We find no error in the court’s explanation, plain or otherwise. The district
court judge indicated he was troubled by Elders’ 47 prior convictions and 20 prior
arrests, which, to his amazement was the most he had encountered in 30 years on
the bench. This clearly pertains to § 3553(a)(1), the history of the defendant.
The judge stated he did not trust Elders, and concluded an upward variance was
warranted to protect the public because Elders’s criminal history demonstrated
that as soon as he was free from jail, he would resume his criminal activities. The
district court also indicated that it granted an upward variance based on the
seriousness of Elders’s offenses, to promote respect for the law, to provide just
punishment, and to afford Elders adequate deterrence against future misconduct.
The district court adequately explained its reasoning and provided a basis
for us to meaningfully review the substantive reasonableness of Elders’s sentence.
Thus, the district court committed no procedural error, let alone plain error, in its
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explanation of Elders’s sentence and its decision to depart from the guidelines
range.
B. Substantive Reasonableness
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. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir.) (internal
quotation omitted), cert. denied, 132 S. Ct. 828 (2011). A sentencing decision is
substantively unreasonable if it “exceed[s] the bounds of permissible choice,
given the facts and the applicable law. . . .” United States v. McComb, 519 F.3d
1049, 1053 (10th Cir. 2007) (internal quotation omitted).
Elders claims that his sentence is substantively unreasonable because it was
based solely on incapacitating him, ignoring the other considerations in § 3553(a).
See Tapia v. United States, 131 S. Ct. 2382, 2387–88 (2011) (describing the four
considerations at play in determining the length of a sentence under § 3553(a)(2)
as retribution, deterrence, incapacitation, and rehabilitation). He argues this
sentence undermines § 3553(a)’s objective of providing respect for the law and
promoting just punishment.
The district court sentenced Elders to 120 months, a 49-month increase.
This is a significant increase, but is justified in light of Elders’s extensive record.
The district court’s explanation from the bench, as well as its listed reasons for
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the departure, indicate that it considered the sentence necessary not only to
incapacitate Elders, but also to deter him from future misconduct. Additionally,
the district court indicated in its written explanation of the sentence that the
guidelines range under-represented the seriousness of his offenses given his
extraordinary criminal history. 2
Elders’s record makes it clear that the lesser sentences he received for prior
offenses were ineffective at deterring him from future misconduct. His argument
that his criminal history is less serious than it appears because it is just the same
offense over and over again only demonstrates that his prior sentences have been
ineffective deterrents. 3 This plus the considerations discussed provide compelling
reasons in support of the district court’s sentence. Accordingly, we conclude the
sentence was substantively reasonable, and the district court did not abuse its
discretion. See also United States v. Mateo, 471 F.3d 1162, 1170 (10th Cir. 2006)
(holding an upward variance of 99 months was not an abuse of discretion based
on defendant’s numerous prior convictions and “demonstrated penchant for
2
There is no indication the district court considered rehabilitation, but a
sentencing court need not consider § 3553(a)(2) factors that are not applicable.
18 U.S.C. § 3582(a); Tapia, 131 S. Ct. at 2388. The district court indicated
rehabilitation was not feasible by stating it believed Elders would resume his
criminal activities as soon as he was released from prison, given his demonstrated
pattern of behavior over his numerous prior convictions.
3
His argument also conflicts with numerous decisions holding that
repetition of the same or similar offenses is grounds for an upward variance. See,
e.g., United States v. Proffit, 304 F.3d 1001, 1012 (10th Cir. 2002).
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criminality”); United States v. Mumma, 509 F.3d 1239, 1245–46 (10th Cir. 2007)
(holding an upward variance of 36 months was not an abuse of discretion based
on defendant’s five prior fraud convictions).
III. Conclusion
For the foregoing reasons, we AFFIRM the sentence imposed by the district
court.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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