United States v. Christopher Bowen Balfrey , 696 F. App'x 450 ( 2017 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-13229
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 8:15-cr-00391-SDM-JSS-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CHRISTOPHER BOWEN BALFREY,
    a.k.a. Bo,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (June 19, 2017)
    Before HULL, WILSON, and MARTIN, Circuit Judges.
    PER CURIAM:
    Christopher Bowen Balfrey appeals the 151-month sentence he received
    after pleading guilty to weapons and drug-trafficking charges. After careful
    review, we affirm.
    I.
    On February 8, 2016, Christopher Balfrey pled guilty to one count of
    conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
    and 846; two counts of being a felon in possession of a firearm, in violation of 18
    U.S.C. §§ 922(g)(1) and 924(e); and one count of possessing a firearm in
    furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c).
    The presentence investigation report (“PSR”) determined Balfrey should be
    sentenced as a career offender because of his prior Florida felony convictions for
    robbery and delivery of cocaine. See United States Sentencing Guidelines
    § 4B1.1(a) (“A defendant is a career offender if . . . the defendant has at least two
    prior felony convictions of either a crime of violence or a controlled substance
    offense.”). Based on his career-offender status, the PSR calculated a base offense
    level of 32, which it reduced by three levels for acceptance of responsibility,
    resulting in a total offense level of 29. The PSR assigned Balfrey a criminal
    history category of VI, as required for all defendants subject to the career-offender
    enhancement. 
    Id. § 4B1.1(b).
    Based on his offense level and criminal history
    category, Balfrey’s guideline range was 151 to 188 months imprisonment. In
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    addition, the PSR determined Balfrey was subject to a consecutive, mandatory-
    minimum sentence of 60 months for his conviction for possession of a firearm in
    furtherance of a drug-trafficking crime. See 18 U.S.C. §§ 924(c)(1)(A)(i), (D)(ii)
    (imposing a consecutive “term of imprisonment of not less than 5 years” for any
    person convicted of possessing a firearm in furtherance of a drug-trafficking
    crime).
    At sentencing, the district court adopted the PSR’s calculation of Balfrey’s
    guideline range. Balfrey argued for a below-guideline sentence “in the range of 10
    years or less.” Balfrey said his career-offender status overstated his actual criminal
    history and risk of recidivism because he was a minor when he committed both of
    the prior felonies that resulted in these convictions. In response, the government
    argued for a sentence of 151-months imprisonment plus the 60-month consecutive
    term required under § 924(c). The government emphasized that Balfrey was not a
    “low level dealer” and is “a violent person,” as evidenced by his prior conviction
    for robbery. The government also mentioned Balfrey’s refusal to enter into a plea
    agreement or otherwise cooperate with the government. The government said that
    Balfrey’s decision not to cooperate is the reason “why . . . [he is] looking at the
    guideline terms that he is.” The district court then continued the sentencing for
    several weeks to allow Balfrey a chance to reconsider whether he wanted to
    cooperate with the government.
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    When sentencing resumed, Balfrey told the court he still did not wish to
    cooperate with the government. Balfrey’s counsel stressed that Balfrey did not
    want the court to think he had been insincere in reconsidering whether to
    cooperate. In response to this, the district court said:
    Actually, I give no consideration to any of it one way or the other.
    And I don’t have any part and don’t accept any part in any of the
    discussions between [the] United States and the defense or make any
    speculations or any findings about who was trying to do what to
    whom.
    The court then proceeded with sentencing. The court “considered the [sentencing]
    factors at 18 U.S.C. [§] 3553.” The court found that Balfrey’s convictions were for
    “serious offenses that represent an example of a serious and persistent form of
    conduct that threatens the community.” But the court also recognized that
    Balfrey’s only prior convictions were for crimes he committed “as a younger
    person,” and that he “had some number of adult years of improved conduct” since
    committing those earlier crimes. In light of these “extenuating circumstances,” the
    court sentenced Balfrey to a below-guideline sentence of 91 months, plus the 60-
    month mandatory consecutive term, for a total sentence of 151-months
    imprisonment.
    II.
    Balfrey first argues the district court erred in finding that his prior Florida
    conviction for robbery, Fla Stat. § 812.13(1), is a predicate offense for the career-
    4
    offender enhancement. As Balfrey acknowledges, he did not raise this objection
    below, so our review is for plain error. See United States v. Aguillard, 
    217 F.3d 1319
    , 1320 (11th Cir. 2000) (per curiam).
    This Court has already considered whether Florida robbery constitutes a
    “crime of violence” for purposes of the career-offender enhancement, and we held
    that it does. United Sates v. Lockley, 
    632 F.3d 1238
    , 1241–45 (11th Cir. 2011).
    We are bound by Lockley. 1
    In arguing that Florida robbery is not a “crime of violence,” Balfrey cites the
    Supreme Court’s decision in Johnson v. United States, 576 U.S. ___, 
    135 S. Ct. 2551
    (2015). Johnson struck down as unconstitutionally vague the so-called
    “residual clause,” which gave one definition of what a “violent felony” is under the
    Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). 
    Id. at 2563.
    Balfrey
    appears to argue that, in light of Johnson, Florida robbery is no longer a “crime of
    violence” under the identical residual clause in the Sentencing Guidelines. See
    USSG § 4B1.2(a)(2) (2014). However, the Supreme Court held in Beckles v.
    United States, 580 U.S. ___, 
    137 S. Ct. 886
    (2017), that “the advisory Guidelines
    are not subject to vagueness challenges under the Due Process Clause.” 
    Id. at 890.
    Because Balfrey’s career-offender enhancement was imposed under the advisory
    1
    We have noted that “the prior panel precedent rule does not bind us to follow” an earlier
    decision “[i]f state law changes or is clarified in a way that is inconsistent with the state law
    premise” of that decision. United States v. Johnson, 
    528 F.3d 1318
    , 1320 (11th Cir. 2008), rev’d
    and remanded on other grounds, 
    559 U.S. 133
    , 
    130 S. Ct. 1265
    (2010). Balfrey does not argue
    that Lockley is inconsistent with intervening state law.
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    guidelines, he cannot bring a vagueness challenge. See 
    id. As a
    result, his Florida
    robbery conviction remains a valid predicate for the career-offender enhancement
    under Lockley.
    III.
    Next, Balfrey argues his sentence is both procedurally and substantively
    unreasonable. We review the reasonableness of a sentence for an abuse of
    discretion. United States v. Turner, 
    626 F.3d 566
    , 573 (11th Cir. 2010) (per
    curiam).
    Balfrey says his sentence was procedurally unreasonable because the district
    court, in determining his sentence, took his failure to cooperate with the
    government into consideration. The record shows otherwise. In discussing
    Balfrey’s decision not to cooperate, the district court expressly said: “I give no
    consideration to any of it one way or the other.” But, even if the district court had
    considered Balfrey’s refusal to cooperate, this Court has held that “a court is
    absolutely entitled to consider a defendant’s failure to cooperate at the time of
    sentencing.” United States v. Malekzadeh, 
    855 F.2d 1492
    , 1498 (11th Cir. 1988).
    Therefore, Balfrey’s sentence was not procedurally unreasonable.
    Finally, Balfrey challenges his sentence on the ground that it was
    substantively unreasonable. The district court must “impose a sentence sufficient,
    but not greater than necessary, to comply with the purposes” listed in 18 U.S.C.
    6
    § 3553(a)(2), including the need to reflect the seriousness of the offense, deter
    criminal conduct, and protect the public from the defendant. 18 U.S.C.
    § 3553(a)(2). In imposing a particular sentence, the court must also consider the
    nature and circumstances of the offense, and the history and characteristics of the
    defendant, among other things. See 
    id. §§ 3553(a)(1),
    (3)–(7). The weight given
    to any specific factor “is committed to the sound discretion of the district court.”
    United States v. Dougherty, 
    754 F.3d 1353
    , 1361 (11th Cir. 2014). However, “[a]
    district court abuses its discretion when it (1) fails to afford consideration to
    relevant factors that were due significant weight, (2) gives significant weight to an
    improper or irrelevant factor, or (3) commits a clear error of judgment in
    considering the proper factors.” United States v. Irey, 
    612 F.3d 1160
    , 1189 (11th
    Cir. 2010) (en banc) (quotation omitted).
    Balfrey says his sentence is substantively unreasonable because the district
    court failed to properly consider the fact that his prior offenses were committed
    when he was a teenager and he had no criminal activity for ten years after those
    offenses early in his life.2 But the record shows the district court did take these
    factors into account. The court recognized that Balfrey’s only prior convictions
    were for crimes he committed “as a younger person.” The court also recognized
    2
    It is not clear whether Balfrey also raises the district court’s alleged reliance on his
    decision not to cooperate as a claim of substantive unreasonableness. To the extent he does, we
    reject that argument for the same reasons set out above.
    7
    that he had “some number of adult years of improved conduct.” It was precisely
    because of these “extenuating circumstances” that the court sentenced Balfrey to a
    below-guideline sentence.
    Because the district court did consider these mitigating factors, Balfrey is
    essentially arguing that the district court did not accord enough weight to them.
    However, the weight given to any particular factor under § 3553(a) is “committed
    to the sound discretion of the district court.” 
    Dougherty, 754 F.3d at 1361
    .
    Therefore, on this record, we cannot say the district court abused its discretion.
    AFFIRMED.
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