United States v. Kevin Lamont Green , 554 F. App'x 895 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13037
Non-Argument Calendar
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D.C. Docket No. 4:12-cr-00207-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN LAMONT GREEN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(February 11, 2014)
Before CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.
PER CURIAM:
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Kevin Green appeals his 66-month sentence for possession of firearms as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), on two grounds. First, he
argues that the district court clearly erred in applying an aggravating-role
enhancement under United States Sentencing Guidelines § 3B1.1(c). Second, he
contends that his sentence is substantively unreasonable.
I.
In June 2012, New Jersey State Police informed the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) that Green was trafficking firearms from
Georgia to New Jersey in exchange for heroin. As a convicted felon, Green could
not purchase the firearms himself, so he asked an acquaintance, Tishard Brown, to
do it. Brown was in Green’s debt, and Green said that purchasing the firearms for
him would make them even. Brown agreed, and on June 15, 2012, Green drove
Brown from Savannah, Georgia to Arrowhead Pawn Shop near Atlanta, Georgia,
where he purchased three firearms. When filling out the ATF paperwork, Brown
indicated that he was the actual purchaser of the firearms, but he later related that
Green had directed him to purchase those firearms. The three firearms purchased
that day had not been recovered as of the time of Green’s sentencing.
On September 20, 2012, Green told Brown that they would be returning to
Atlanta; he drove Brown back to the Arrowhead Pawn Shop the very next day.
This time, they selected five firearms to purchase, but the purchase was delayed in
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order for Brown’s background check to be processed. ATF agents got in contact
with Arrowhead’s staff while the background check was processing, and they
agreed to notify the ATF when it was complete. The background check cleared on
September 26, and Brown told an Arrowhead employee that he would come pick
up the firearms next day. On that day, Green again drove Brown from Savannah to
the pawn shop so that they could pick up the guns. ATF agents, who had the
premises under surveillance, observed Brown and Green exit the store with a box
containing five guns. After Green drove Brown back to Savannah, he dropped
Brown off but kept the firearms in his car. ATF agents pulled Green over, found
the weapons, and placed him under arrest.
A federal grand jury indicted Green on one count of conspiracy to make
false statements in the purchase of firearms and to possess firearms as a convicted
felon, in violation of 18 U.S.C. § 371, and one count of possession of firearms as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Green entered into a plea
agreement under which he pleaded guilty to the possession charge in exchange for
the government’s dismissal of the charge of conspiracy. At sentencing, the district
court overruled both of Green’s objections to the presentence investigation report
(PSR). Green’s sentencing guidelines range of imprisonment was 46 to 57 months,
but the court varied upward and sentenced Green to, among other things, 66
months imprisonment.
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Green now appeals his sentence, arguing that the district court erred in
applying an aggravating-role enhancement to his base offense level and that the
court’s imposition of an upward variance resulted in a sentence that is
substantively unreasonable.
II.
A.
We review a district court’s determination of a defendant’s role in the
offense for clear error. United States v. Jiminez, 224 F.3d 1243, 1250–51 (11th
Cir. 2000). Accordingly, we will reverse the district court’s application of the
aggravating-role enhancement only if we are “left with the definite and firm
conviction that a mistake has been committed.” United States v. Philidor, 717 F.3d
883, 885 (11th Cir. 2013).
Section 3B1.1(c) of the Sentencing Guidelines provides for a two-level
enhancement to a defendant’s offense level if “the defendant was an organizer,
leader, manager, or supervisor in any criminal activity” not falling within the
purview of subsections (a) or (b). U.S.S.G. § 3B1.1(c) (Nov. 2012). In
determining whether a defendant exercised a leadership role in the commission of
an offense, courts should consider the following factors:
[T]he exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the
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offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.
U.S.S.G. § 3B1.1, cmt. n.4. However, the leadership enhancement should not be
applied to a defendant who “merely suggests committing the offense.” Id.
In this case, the district court determined that Green was eligible for the
aggravating-role enhancement for several reasons. First, the court found
persuasive the fact that Green was the principal for whom Brown made the
purchases. The court noted that Green “was the person with the money” and that
he was the one who ultimately “wanted the weapons.” Second, the court found
that Green exercised almost exclusive control and authority over the operation, and
that he planned and organized the offense. The facts the court used to make this
determination were that Green recruited Brown to serve as his accomplice,
identified the weapons store, drove Brown to that store, selected the weapons he
wanted, and furnished the money to purchase the weapons.
On appeal, Green contends that he and Brown were in fact co-equal partners
in the conspiracy and that the district court erred by concluding otherwise. Green
cites as evidence of this contention the fact that neither codefendant claimed a
larger share of the fruits of the crime 1 and that both participated in the crime in
1
Although this issue is not dispositive either way, we are not convinced that Green did
not claim and receive a larger share of the fruits of the crime than Brown. Brown did not retain
any of the eight firearms that he and Green purchased while Green had five in his possession
when he was apprehended.
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different and complementary ways. For example, while Green provided
transportation and finances, Brown handled logistics like completing government
forms, submitting to a background check, and conducting the transaction with
Arrowhead.
Green also makes much of certain discrepancies among the various accounts
of the offense. One such discrepancy can be found by comparing the investigating
ATF agent’s account of the offense with the account contained in the PSR. In an
affidavit in support of the criminal complaint filed in this case, the ATF agent
stated that the store clerk who had helped Brown on his September 21 trip to the
pawn shop reported that Brown had been accompanied by another individual (later
identified as Green) who merely “appeared to be helping Brown pick out
firearms.” (emphasis added). Although the PSR also references the store clerk’s
account, it elsewhere relates Brown’s version of events, in which “Green directed
Brown to purchase four Jiminez Arms 9mm pistols and one Masterpiece Arms
pistol.” 2 (emphasis added). On the basis of the account contained in the affidavit,
Green contends that he and Brown “jointly select[ed] those firearms” and were
therefore equal participants in the crime. Green also takes issue with the
government’s assertion (which the district court adopted) that he “recruited”
Brown to be his accomplice. Instead, Green maintains that he merely offered
2
Brown’s account of the June 15 trip to the pawn shop, as reported in the PSR, also has
Green “direct[ing] Brown to purchase several firearms.”
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Brown an opportunity to satisfy a debt that Brown accepted. Once again, there are
discrepancies between different sources of evidence on this point. While the PSR
reports Brown’s statement that Green only “suggested” that he repay the debt he
owed to Green by purchasing the guns,3 the ATF agent’s affidavit states that Green
“told [Brown] that he needed to purchase some firearms for him in order to repay
the money that was owed.”
The district court’s determination that Green played a supervisory or
leadership role in the offense “is entitled to. . . deference on appeal.” United States
v. Rendon, 354 F.3d 1320, 1332 (11th Cir. 2003) (quotation marks omitted).
While Green quibbles with the sufficiency of the evidence to support one or two of
the factors a court should consider under U.S.S.G. § 3B1.1, we have repeatedly
observed that “[t]here is no requirement that all the considerations have to be
present in any one case.” See, e.g., United States v. Ramirez, 426 F.3d 1344, 1356
(11th Cir. 2005). And we have upheld § 3B1.1 sentence enhancements where the
defendant “had decision-making authority and exercised control” as Green did
here. United States v. Saurez, 313 F.3d 1287, 1294 (11th Cir. 2002) (upholding
enhancement where the defendant directed the movement of cocaine from one
house to another, instructed co-conspirators on how to transport the drugs, and
3
Although the specific paragraph of the PSR cited by Green states only that Green
“suggested” the plan to Brown, it elsewhere states that he “recruited Brown to purchase the
firearms.”
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planned where to hide the drugs); see also United States v. Mandhai, 375 F.3d
1243, 1248 (11th Cir. 2004) (upholding enhancement where the defendant
recruited one other individual into a terrorist plot, prompted that person to purchase
weapons, and briefed him on the bombing plan); United States v. Lozano, 490 F.3d
1317, 1323 (11th Cir. 2007) (upholding enhancement where defendant negotiated
the sale of counterfeit products to undercover agents, instructed another employee
to engage in counterfeit sales, and oversaw the warehouse of products in the
principal leader’s absence); Rendon, 354 F.3d at 1332 (upholding enhancement
where the defendant hired his co-conspirators for the drug trafficking trip, drove
the boat to the meet-up point, and directed them to throw the drugs overboard
when a Navy plane spotted them).
In this case, there was evidence in the record supporting the district court’s
finding that Green’s participation in the crime outstripped Brown’s and that he
exercised control and authority over Brown. The PSR and affidavit show that it
was Green who decided which pawn shop to purchase the guns from, drove Brown
to and from the pawn shop, selected the guns to be purchased, and provided the
money for the purchase. At sentencing, Green did not object to any of the facts set
out in the PSR. 4 His failure to object effectively admitted those allegations of fact
4
Green did file two objections to the PSR, but both of them related to the probation
office’s calculation of the guidelines range, not the factual accuracy of the PSR’s content.
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for sentencing purposes, so he cannot complain about them now. See United
States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). Because there is “no clear
error in cases in which the record supports the district court’s findings,” United
States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002), we reject Green’s argument
that the enhancement was unwarranted. The evidence in the record amply supports
the district court’s determination that Green played a leadership or supervisory role
in this offense.
B.
Green also contends that his sentence is substantively unreasonable in view
of the sentencing factors set forth in 18 U.S.C. § 3553(a). We review the
reasonableness of a sentence under a deferential abuse of discretion standard and in
light of the totality of the circumstances. Gall v. United States, 552 U.S. 38, 41,
51, 128 S.Ct. 586, 591, 597 (2007). As the party challenging the sentence, Green
bears the burden of showing that it is unreasonable in light of the record and the
§ 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We will not set aside a sentence merely because we would have decided that
another sentence was more appropriate; instead, we must be “left with the definite
and firm conviction that that the district court committed a clear error of judgment
Counsel for Green explicitly stated on the record that neither “Mr. Green nor I have any
objection to the factual accuracy of the PSR.”
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in weighing the § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.” United States v.
Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted).
When sentencing Green, the district court declined to impose an upward
departure but did impose an upward variance, which resulted in a sentence that was
above the advisory guidelines range. Green asserts that the district court erred by
varying upward after it had refused the probation office’s request for an upward
departure based on the same facts. But his argument overlooks the fact that the
standards for an upward departure differ from the standards for an upward
variance.
The sentencing guideline under which the probation office requested an
upward departure, U.S.S.G. § 4A1.3, applies only when the defendant’s criminal
history category “substantially under-represents the seriousness of the defendant’s
criminal history” or when there is a high likelihood that the defendant will commit
other crimes. Id. § 4A1.3(a)(1). Section 3553(a), by contrast, allows a district
court to consider a much wider range of factors. In this case, for example, the
district court specifically mentioned the following statutory factors: (1) the nature
and circumstances of the offense; (2) the history and characteristics of the
defendant; (3) the need for the sentence imposed to reflect the seriousness of the
offense, promote respect for the law, and provide just punishment; (4) the
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provision of adequate deterrence to criminal conduct; and (5) the need to protect
the public from the defendant. 18 U.S.C. § 3553(a)(1)–(2). Although it must
evaluate all of the § 3553(a) factors, a district court may “attach great weight to
one factor over others.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.
2009) (quotation marks omitted). The district court in this case gave special
weight to the danger to the public posed by Green’s conduct, his extensive criminal
history, history of recidivism, and his lack of stable employment history.
The requirements for imposing an upward departure under U.S.S.G. § 4A1.3
are narrower than the requirements for varying upward under § 3553(a), so it is not
unusual for a district court to impose one without the other. We have recognized
that a district court may rely on the same facts to impose an upward variance
without also enhancing a sentence range under the guidelines, and that principle
applies here. See United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir.
2010) (affirming the district court’s decision to impose an upward variance based,
in part, on the number of victims involved in the offense despite its refusal to
impose a multiple-victim enhancement under the guidelines). Moreover, the fact
that the court ultimately imposed a sentence well below the statutory maximum of
ten years supports the sentence’s reasonableness. See 18 U.S.C. § 924(a)(2)
(providing ten-year statutory maximum); United States v. Gonzalez, 550 F.3d
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1319, 1324 (11th Cir. 2008) (holding that a defendant’s sentence was reasonable in
part because it was well below the statutory maximum).
The district court in this case considered the § 3553(a) factors and
specifically discussed why the variance was justified. In light of this record and
the justifications cited by the district court for the upward variance, we do not have
the “the definite and firm conviction that that the district court committed a clear
error of judgment in weighing the § 3553(a) factors.” Irey, 612 F.3d at 1190.
AFFIRMED.
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