United States v. Paris ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, Nos. 18-6216
and 18-6217
v. (D.C. Nos. 5:18-CR-00034-SLP-1
and 5:18-CR-00108-SLP-1)
MARTIN LEE PARIS, (W.D. Oklahoma)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Martin Lee Paris appeals from a decision of the district court sentencing him to
a term of 188 months’ imprisonment for robbing a bank in violation of 18 U.S.C.
§ 2113(a). He argues the district court erred by classifying him as a career offender
within the meaning of USSG § 4B1.1(a) and that the sentence imposed, despite being
within the Guidelines range, was substantively unreasonable. Exercising jurisdiction
under 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 April 9, 2018, Mr. Paris entered a bank in Kansas and handed the teller a
note stating, “This is a Robbery. Just be Calm Everything will be alright. No die
packs, start w/100’s. Thank you and have a nice day.” 18-6217 ROA, Vol. 2 at 29.
Mr. Paris left the bank with $5,200 in cash. He evaded arrest until April 13, 2018, by,
among other things, leading police on a high-speed chase and dyeing his hair black to
change his appearance. Mr. Paris subsequently pleaded guilty to unarmed bank
robbery under 18 U.S.C. § 2113(a).
Prior to sentencing, Mr. Paris’s probation officer prepared a presentence
investigation report (“PSR”). The PSR calculated Mr. Paris’s base offense level as
20, see USSG § 2B3.1, adjusted to 24 because Mr. Paris had taken the property of a
financial institution, see USSG § 2B3.1(b)(1), and recklessly created a substantial
risk of death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer, see USSG § 3C1.2.
The PSR also recommended an enhancement to an offense level of 32 because
Mr. Paris “has at least two prior felony convictions of . . . a crime of violence” and is
therefore a career offender. USSG § 4B1.1(a). Specifically, Mr. Paris committed two
additional bank robberies in 1994, for which he received a sentence of seventy-eight
months’ custody followed by three years’ supervised release. In 2002, less than two
months after beginning that period of supervised release, Mr. Paris committed
another bank robbery, resulting in the revocation of his supervised release. For the
2002 robbery, Mr. Paris received a sentence of 180 months’ imprisonment, again to
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be followed by three years’ supervised release. Mr. Paris began this second term of
supervised release in December 2017 and, in April 2018, committed the instant
offense.
Because Mr. Paris clearly demonstrated acceptance of responsibility for the
offense and timely notified authorities of his intention to enter a guilty plea, the PSR
recommended a three-point reduction of the offense level to 29. Based on this total
offense level, and Mr. Paris’s criminal history category of VI, see USSG § 4B1.1(b)
(assigning career offenders a criminal history category of VI), the PSR calculated a
Guidelines range of 151 to 188 months’ imprisonment.
Mr. Paris filed a sentencing memorandum, objecting to his classification as a
career offender on the grounds that (1) bank robbery does not have the required
element of “force” under USSG § 4B1.2(a), and (2) his 1994 conviction occurred too
many years prior to the instant offense to satisfy § 4B1.1(a)’s requirement of “two
prior felony convictions.” Mr. Paris requested that the court impose a sentence below
the Guidelines range or that his sentence for bank robbery run concurrently with the
sentence imposed with the revocation of his supervised release. To support this
request, Mr. Paris noted that he had not used violence or specifically threatened bank
employees and that he had quickly taken responsibility for the bank robbery and
consented to a transfer of venue sought by the prosecution. He also discussed his
difficult childhood and gambling addiction, which contributed to his decision to rob
the bank.
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At a combined sentencing and revocation hearing, the district court overruled
Mr. Paris’s objections to his classification as a career offender and sentenced Mr.
Paris to 188 months’ imprisonment. In reaching this sentence, the district court was
“mindful of [its] statutory duty” to “impose a sentence that is sufficient but no greater
than necessary to fulfill the objectives of sentencing under the Sentencing Reform
Act.” 18-6217 ROA, Vol. 3 at 40. The district court considered each of the 18 U.S.C.
§ 3553 factors, noting in particular that Mr. Paris committed a serious offense and
has an extensive criminal history, including other bank robberies committed while on
supervised release for bank robbery. And although the district court recognized that
the instant offense “could have been worse,” 18-6217 ROA, Vol. 3 at 42, that Mr.
Paris had swiftly accepted responsibility, and that Mr. Paris’s unstable childhood and
gambling addiction contributed to his criminal conduct, the court ultimately
determined these considerations did not warrant a downward variance and sentenced
Mr. Paris to a term of imprisonment within the Guidelines range.
Mr. Paris timely appealed.
II. ANALYSIS
On appeal, Mr. Paris raises the same objections to his classification as a career
offender he raised below—that bank robbery does not include the requisite “force” to
constitute a crime of violence under § 4B1.2 and that his 1994 conviction is simply
too old to be used as a predicate offense. He also challenges his sentence as
substantively unreasonable. We consider each argument in turn.
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1. Career Offender
We review de novo each of Mr. Paris’s objections to career-offender status.
See United States v. Abeyta, 877 F.3d 935, 939 (10th Cir. 2017) (“We review the
district court’s interpretation and application of the Sentencing Guidelines de
novo.”); see also United States v. Wray, 776 F.3d 1182, 1184 (10th Cir. 2015) (“Our
review of whether a defendant's prior conviction constitutes a crime of violence
under U.S.S.G. § 4B1.2 is de novo.”).
With respect to Mr. Paris’s first objection to career-offender status, a crime of
violence must have “as an element the use, attempted use, or threatened use of
physical force against the person of another.” USSG § 4B1.2(a). As Mr. Paris
acknowledges, our court has already decided that federal bank robbery under 18
U.S.C. § 2113(a) includes the requisite element of force and constitutes a crime of
violence. See United States v. McCranie, 889 F.3d 677, 681 (10th Cir. 2018). Our
precedent thus forecloses Mr. Paris’s first objection to career-offender status.
With respect to Mr. Paris’s second objection, a prior conviction can be
considered for career-offender status if it led to “any prior sentence of imprisonment
exceeding one year and one month, whenever imposed, that resulted in the defendant
being incarcerated during any part of [the] fifteen-year period” prior to “the
defendant’s commencement of the instant offense.” USSG § 4A1.2(e)(1); see United
States v. Patillar, 595 F.3d 1138, 1140–41 (10th Cir. 2010). Mr. Paris objects to the
use of his 1994 bank robbery conviction as a predicate offense, as it is “nearly 24
years old.” Aplt. Br. at 13. But as Mr. Paris concedes, the “strict operation of the
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guidelines . . . permit[s] this conviction to qualify as a predicate offense.” Id.
Mr. Paris began his three-year term of supervised release for the 1994 bank-robbery
conviction on September 24, 2002. His supervised release was revoked on July 15,
2004, after he pleaded guilty to the 2002 bank robbery, and the district court
sentenced him to twenty-four months’ imprisonment. USSG § 4A1.2(k)(2) allows
that “revocation of . . . supervised release . . . may affect the time period under which
certain sentences are counted as provided in § 4A1.2(d)(2) and (e),” and directs the
sentencing judge to determine the applicable time period using “the date of last
release from incarceration on such sentence.” Mr. Paris was confined on revocation
of supervised release related to the 1994 bank robbery beginning in July 2004, less
than 15 years prior to the instant offense committed in April 2018. Accordingly, the
district court did not err in considering this conviction to be a prior conviction for
purposes of career-offender status under § 4B1.1(a).
2. Substantive Reasonableness
We review sentences imposed by the district court for an abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007). This review “includes both a
procedural component, encompassing the method by which a sentence was
calculated, as well as a substantive component, which relates to the length of the
resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).
When the district court “properly considers the relevant Guidelines range and
sentences the defendant within that range, the sentence is presumptively reasonable.”
United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Mr. Paris may rebut
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this presumption “by demonstrating that the sentence is unreasonable in light of the
other sentencing factors laid out in § 3553(a).” Id.
Mr. Paris submits his within-Guidelines sentence is substantively unreasonable
primarily based on (1) his gambling and substance abuse problems; (2) the manner in
which he robbed the bank, without overtly threatening the teller or using a weapon;
and (3) his difficult childhood. These assertions cannot overcome the presumptive
reasonableness of the district court’s within-Guidelines 188-month sentence. Indeed,
the district court expressly considered each of these arguments when explaining its
sentence in light of the § 3553(a) factors. The court stated that it considered
Mr. Paris’s difficult upbringing and understood that Mr. Paris’s struggles with
addiction and unstable childhood were “adverse influences . . . that impact[ed] [his]
decision making.” 18-6217 ROA, Vol. 3 at 44. It also acknowledged Mr. Paris’s
argument that his bank robberies “could have been worse” but maintained that bank
robbery is a serious offense that could “terrify” bank employees despite being
committed in an ostensibly non-violent manner. 18-6217 ROA, Vol. 3 at 40–44.
Nevertheless, the court declined to grant a downward variance based largely on Mr.
Paris’s extensive criminal history and pattern of committing bank robberies while on
supervised release. 18-6217 ROA, Vol. 3 at 44–45.
In short, the district court gave careful consideration to the Guidelines range
and to Mr. Paris’s arguments, but concluded that the § 3553(a) factors—most
significantly promoting respect for the law, affording adequate deterrence, and
protecting the public from Mr. Paris’s further crimes—did not warrant a downward
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variance. See United States v. Barnes, 890 F.3d 910, 917 (10th Cir. 2018) (“A
sentence is more likely to be within the bounds of reasonable choice when the court
has provided a cogent and reasonable explanation for it.”). Given the “substantial
deference” we afford to the district court’s sentencing decisions, United States v.
Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011) (quotation marks omitted), we
cannot say a within-Guidelines 188-month sentence is unreasonable in this case.
III. CONCLUSION
For these reasons, we AFFIRM the district court’s decision to sentence
Mr. Paris to 188 months’ imprisonment to be served concurrently to the revocation
sentence imposed for Mr. Paris’s violation of supervised release.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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