United States v. Rayford (Kenneth) ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 10, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3291
v. (D.C. No. 2:09-CR-20143-CM-1)
(D. Kansas)
KENNETH RAYFORD,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.
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.
On June 21, 2010, defendant and appellant Kenneth Rayford pled guilty to
one count of attempted bank robbery, in violation of 18 U.S.C. § 2113(a) and (2);
one count of carrying and using a firearm during and in relation to the attempted
*
This order and judgment is not binding precedent except under the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.
bank robbery, in violation of 18 U.S.C. § 924(c) and (2); and two counts of
aggravated bank robbery, in violation of 18 U.S.C. § 2113(a), (d) and (2). He was
sentenced to concurrent 108-month terms of imprisonment on the bank robbery
counts and a consecutive 60-month term on the firearm count, for a total of 168
months’ imprisonment. Arguing that his sentence is substantively unreasonable,
Mr. Rayford appeals his sentence. We affirm.
BACKGROUND
The facts relevant to this appeal are not in dispute and do not require
lengthy recitation. On December 28, 2007, Mr. Rayford and another individual
entered the Hillcrest Bank in Gladstone, Missouri, carrying firearms. At least one
of the men pointed his weapon at bank employees and both made threats of harm.
They took approximately $23,132 from bank employees.
On March 17, 2008, Mr. Rayford and two other men entered the Enterprise
Bank and Trust in Kansas City, Missouri, all carrying firearms. Again, at least
two of the men pointed weapons at bank personnel and made threatening remarks.
This time, they took approximately $158,077 from bank employees.
Finally, in October 2009, based on intercepted telephone calls obtained
pursuant to a court-ordered Title III wiretap, federal and local law enforcement
personnel believed that Mr. Rayford, his son Paul Rayford, and Claude White
were planning to rob the Interstate Federal Savings Bank in Kansas City, Kansas.
-2-
Officers conducted surveillance of Mr. Rayford, and observed him one day as he
exchanged vehicles and picked up a black male, later identified as Claude White.
After driving to different locations, Mr. Rayford dropped off Mr. White, who got
into a car which officers knew had been previously stolen, and then picked up
Paul Rayford. 1 Mr. White and Paul Rayford drove to the Interstate Federal
Savings Bank with Mr. Rayford following them in a different car. Agents were
waiting for the men and had ordered the bank employees to lock the doors to the
bank. Mr. White and Paul Rayford attempted to go into the bank, wearing masks
and carrying firearms. When they realized the bank doors were locked, they
returned to their car. They were ultimately arrested without incident, as was
Mr. Rayford, who had remained seated in his car which was parked a little
distance away. Two fully loaded firearms were found in Mr. White’s car. Paul
Rayford was wearing a bullet-proof vest when he was arrested.
As indicated, Mr. Rayford pled guilty. In preparation for sentencing under
the advisory United States Sentencing Commission, Guidelines Manual (2009)
(“USSG”), the United States Probation Office prepared a presentence report
(“PSR”). It calculated a total offense level of 29 for the three bank robbery
counts, which, with a criminal history category of I, yielded an advisory
sentencing range of 87 to 108 months. The Guidelines sentence for count two,
1
As it turned out, the stolen car had been stored in the yard behind Mr.
Rayford’s property.
-3-
carrying and using a firearm during and relation to a crime of violence, was not
less than 60 months, to be imposed consecutively to any other term of
imprisonment.
The PSR set out various other factors relating to Mr. Rayford which might
warrant an upward or downward departure or variance. Mr. Rayford had prior
convictions for murder, armed bank robbery, and aggravated assault, but they
were so old that no criminal history points were added on account of them. The
PSR noted that the court could “consider the seriousness of these prior
convictions [as] a factor that may warrant an upward departure pursuant to
[USSG] § 4A1.3(a)(1).” PSR ¶ 134, R. Vol. 3 at 29. The PSR also stated that, in
addition to considering Mr. Rayford’s prior criminal history, it might also
consider his “age and medical condition as a factor when considering if a
[downward] variance is warranted.” Id. at ¶ 136, id. at 30.
The government filed objections to the PSR, arguing that a two-point
enhancement of his base offense level was applicable pursuant to USSG
§ 3B1.1(c) because Mr. Rayford was a leader/organizer of less than five
participants. The government claimed that Mr. Rayford had organized the
attempted bank robbery and recruited the others; that he had cased the bank both
alone and with his son, Paul; that he initiated the phone calls relating to the
robberies and that he made the arrangements to obtain the stolen car.
-4-
Mr. Rayford opposed any two-point enhancement, arguing that the three
men shared equally in the planning and execution of the robberies. He also
objected to any upward departure or variance based on his prior convictions.
On October 13, 2010, the government filed a sentencing memorandum,
asserting that Mr. Rayford’s prior violent convictions, too old to be counted as
criminal history under the Guidelines, nonetheless merited an upward variance.
The memorandum quoted at length from a Missouri state appellate court
decision’s description of a gun battle between Mr. Rayford and a police officer, in
which the officer and Mr. Rayford were shot, after which Mr. Rayford escaped
from the hospital. The government further asserted that, even though most of
Mr. Rayford’s prior convictions occurred more than thirty years prior, he
committed the three separate robberies at issue in this case while in his late
fifties, and therefore could not claim he had outgrown a period of youthful
indiscretion. The government accordingly argued that Mr. Rayford’s criminal
history score vastly under-represented the seriousness of his past conduct.
The government’s memorandum also promised that the government would
prove, at sentencing, Mr. Rayford’s eligibility for a two-point enhancement as
leader/organizer, and further argued for a two-point enhancement because Paul
Rayford was arrested wearing body armor (the bullet-proof vest). 2 Based on its
2
Even though the court overruled Mr. Rayford’s objection to a two-point
enhancement for wearing body armor, and allowed that enhancement, the total
(continued...)
-5-
arguments in its sentencing memorandum, the government sought a sentence for
Mr. Rayford of 168 months, followed consecutively (as required by statute) by the
60-month sentence for the firearms conviction.
At the sentencing hearing, the government introduced testimony from
Kansas City, Missouri, Police Department Detective Joe Daneff, who stated that
he had been involved in the investigation of Mr. Rayford, including listening to
the wire-tapped phone conversations between Mr. Rayford, his son Paul, and Mr.
White. Detective Daneff testified that, based on the phone calls he heard, it
appeared Mr. Rayford was organizing the bank robbery of the Interstate Federal
Savings bank.
After listening to testimony, evidence and arguments, the district court
concluded that the government had proven by a preponderance of the evidence
that the two-point enhancement for being a leader/organizer of a group of less
than five applied to Mr. Rayford. The court denied Mr. Rayford’s
objection to the court’s consideration of an upward departure or variance based on
Mr. Rayford’s prior convictions and further denied his objection to the two-level
enhancement for the use of body armor.
Mr. Rayford then requested a downward variance from the advisory
Guidelines range of 87-108 months. In support of this argument, defense counsel
2
(...continued)
offense level remained the same, with or without that enhancement, because of
the grouping rules in the Guidelines.
-6-
presented testimony from an actuary, Christopher Hause. He testified that, based
on Mr. Rayford’s current age and health conditions (fifty-nine-year-old male with
high blood pressure, diabetes, and chest pain), he had a life expectancy of
approximately 10.9 more years. He argued that a 168-month sentence would be,
in effect, a death sentence because he would most likely die in prison.
The government countered this somewhat by noting that the underwriter
who had assisted Mr. Hause in his calculations observed that Mr. Rayford would
be closely monitored in prison, thereby permitting earlier diagnosis of any health
problems.
Mr. Rayford also presented letters from family members, who stated that he
was a wonderful father and family man. His counsel also reminded the court that
Mr. Rayford had ceased committing crimes for a long time before engaging in the
instant robberies, and that he had educated himself and obtained an advanced
degree in the interim.
The government continued to argue about Mr. Rayford’s serious prior
criminal history, which, it asserted, should really merit a criminal history
category of V. The government also reminded the court of the seriousness of the
current crimes of conviction, involving brandishing firearms around innocent
people in the banks. This, combined with his prior convictions for murder, bank
robbery and aggravated assault, all suggested to the government a man of
continuing danger and violence. Accordingly, the government requested an
-7-
upward departure based on the under-representation of the seriousness of his
criminal history.
Before announcing its sentence of 168 months, the court explained as
follows:
Some of your comments indicated that possibly because of your race,
you’ve had a difficult life, that you’ve been under a great deal of
pressure throughout your life. . . . [B]ut what I saw in your
presentence investigation report through your own self-reporting is
that you believed that you were in a good family home environment
when you were growing up, that you believed your parents were good
role models for you, that they provided for you . . . . The stresses
that you may have had from lack of finances or money, that has to be
balanced out by [the fact that] within the recent five to 10 years, your
checking account does not reflect a person who is struggling
financially.
Tr. of Sentencing Hr’g at 119-120, R. Vol. 2 at 163-64. The court then alluded to
the fact that his reported adjusted income from the past years almost always
reflected some significant gambling winnings, and noted that “change[s] in your
checking account from $150,000 to $50,000 . . . to support a gaming lifestyle, was
a choice that was made, . . . [and] there’s some consequences when that’s not able
to be controlled.” Id. at 120, id. at 164.
The court subsequently stated there were legitimate reasons for the
government’s argument that the seriousness of his criminal history was under-
represented:
What did not help your situation is the fact that when you were
released and maintained a lawful lifestyle for a time, when you chose
to re-offend, you did it not on one occasion, but on multiple
-8-
occasions involving a crime that carries with it great risk and harm to
others besides yourself, but to the general public.
Id. at 121, id. at 165. Nonetheless, the court rejected the government’s request
for an upward departure, and it turned to Mr. Rayford’s request for a downward
“variance.” The court considered the arguments about his age and health needs,
and ultimately concluded:
[I]t appears[] that there’s two different people . . . involved over
these past years . . . that at different times, a different person has
emerged. In the end what the court would find is that . . . it’s not a
different person. It’s been one person. It’s been you. At different
times, there’s been different choices made by you. Maybe your
personality was different on different occasions. But in the . . . end,
you made these choices. This particular crime had great risk and
danger to innocent people including your son, and for those reasons
the court after review does not believe a downward departure would
be appropriate.
Id. at 122, id. at 166.
The court then pronounced the 168-month advisory Guidelines sentence,
followed by three years of supervised release. The district court also explained
its sentence by reference to the factors contained in 18 U.S.C. § 3553(a).
Mr. Rayford immediately objected to the procedural and substantive
reasonableness of the sentence. This appeal followed, in which Mr. Rayford only
challenges the substantive reasonableness of his sentence.
-9-
DISCUSSION
We review the substantive reasonableness of a defendant’s sentence for
abuse of discretion. See United States v. Mancera-Perez, 505 F.3d 1054, 1058
(10th Cir. 2007). Under this deferential standard, we may overturn Mr. Rayford’s
sentence only if the district court’s decision was “arbitrary, capricious, whimsical,
or manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307
(10th Cir. 2009) (quotation omitted). Thus, we must determine whether Mr.
Rayford’s sentence is reasonable “given all the circumstances of the case in light
of the factors set forth in 18 U.S.C. § 3553(a).” Id. (quotation omitted).
Additionally, we bear in mind that a sentence imposed within the properly
calculated advisory guideline range is entitled to a rebuttable presumption of
reasonableness.” United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165 (10th
Cir. 2010). Mr. Rayford explicitly only challenges the substantive reasonableness
of his sentence.
Mr. Rayford’s primary argument for the unreasonableness of his sentence is
that, given his age (60) and his health needs (high blood pressure, diabetes and
chest pains), he will not outlast a 168-month sentence and will die in prison. He
is, he claims, in essence sentenced to death.
As we have recently noted, when deciding “whether to depart from an
otherwise applicable Guideline range, a district court is specifically discouraged
from considering a defendant’s age.” United States v. Sells, 541 F.3d 1227, 1237
-10-
(10 th Cir. 2008) (citing USSG § 5H1.1). That is not necessarily the case when a
district court is deciding whether to vary, pursuant to 18 U.S.C. § 3553(a), from
an applicable Guideline range. Rather, in deciding whether to vary, “district
courts have broad discretion to consider individual characteristics like age.” Id.at 1238 (citing Gall v. United States, 552 U.S. 38, 58 (2007)). 3 Mr. Rayford asks
us to find his sentence unreasonable because the district court failed to vary,
based on the § 3553(a) factors, and, in particular, because of his age and poor
health.
In this case, the district court carefully considered all the § 3553(a) factors
in imposing its sentence on Mr. Rayford. It noted that, after committing very
brutal and violent crimes as a young man, Mr. Rayford enjoyed a long period of
calm, non-criminal conduct. Nonetheless, in his late 50's, Mr. Rayford committed
three armed robberies (or, in the case of one, an attempted armed robbery), over a
three-year span. As we stated in Sells, “[t]his fact casts significant doubt on [Mr.
Rayford’s] sub silentio assertion that a shorter sentence is sufficient to deter
future criminal acts on his part because he is unlikely to commit additional crimes
3
As we have explained,
A departure occurs when a court reaches a sentence above or
below the recommended Guidelines range through application of
Chapters Four or Five of the Sentencing Guidelines. A variance
occurs when a court enhances or detracts from the recommended
range through application of § 3553(a) factors.
Sells, 541 F.3d at 1237 n.2 (citations and quotations omitted).
-11-
due to his age.” Sells, 541 F.3d at 1238. We therefore have no difficulty
concluding that, in the exercise of its wide discretion, the district court correctly
determined not to vary downward based on Mr. Rayford’s age and health.
Furthermore, “both the Supreme Court and this court have made clear that
it is not the job of an appellate court to review de novo the balance struck by a
district court among the factors set out in § 3553(a).” Id. at 1239 (citing Gall,
552 U.S. at 51-53). Indeed, the Supreme Court has continually reminded us that
“[d]istrict courts have an institutional advantage over appellate courts in making
these sorts of determinations, especially as they see so many more Guidelines
sentences than appellate courts do.” Gall, 552 U.S. at 52 (quoting Koon v. United
States, 518 U.S. 81, 98 (1996)).
In short, we can find no fault with the district court’s sentence in this case.
Mr. Rayford has not rebutted the presumption of reasonableness attached to it.
CONCLUSION
For the foregoing reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-12-