United States v. Bandele Adekunle Adeneye ( 2015 )

Case: 15-10105 Date Filed: 07/13/2015 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10105
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00141-SCJ-RGV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BANDELE ADEKUNLE ADENEYE,
a.k.a. Bandale I. Ade,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 13, 2015)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Plaintiff-appellant Bandele Adeneye appeals his 13-month total sentence
imposed after he pled guilty to escape from federal custody, in violation of 18
U.S.C. § 751(a), and failure to surrender for service of a sentence, in violation of
18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii). 1
At Adeneye’s initial sentencing, the district court refused to group the counts
of conviction under U.S.S.G. § 3D1.2. However, the court varied downward from
the advisory guideline range of 18 to 24 months’ imprisonment, sentencing
Adeneye to 13 months for each count, to be served concurrently, for a total of 13
months’ imprisonment. We vacated and remanded, and instructed the district court
to make clear findings as to whether grouping was appropriate under § 3D1.2(a) or
(b).2 On remand, the district court again refused to group the counts and sentenced
Adeneye to a total of 13 months’ imprisonment. In doing so, it clarified that it
would have sentenced Adeneye to the same total sentence of 13 months even if the
counts were grouped.3 The present appeal ensued.
On appeal, Adeneye argues that the district court erred in refusing to group
his counts of conviction when calculating his advisory guideline range. The
government responds, inter alia, that grouping the counts would not have been
1
We note that the judgment incorrectly lists the offense of conviction as to count two as
18 U.S.C. § 3146(b)(A)(ii), instead of § 3146(b)(1)(A)(ii). We point this out in case the district
court wishes to correct this clerical error in the judgment; the inadvertent omission of the “(1)”
does not affect the instant appeal.
2
United States v. Adeneye, 585 F. App’x 982, 987 (11th Cir. 2014) (per curiam).
3
The advisory guideline range would have been 12 to 18 months’ imprisonment if the
counts were grouped.
2
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proper, as Adeneye committed two separate offenses with two separate wrongs.
After consideration of the parties’ briefs and review of the record on appeal, we
find that, even if the district court erred in failing to group Adeneye’s two counts
of conviction, any error in that regard was harmless, and the 13-month sentence
imposed is reasonable regardless of whether the counts are grouped. Accordingly,
we affirm Adeneye’s sentence.
I.
We review the district court’s refusal to group multiple counts under
U.S.S.G. § 3D1.2 with due deference. See United States v. Bradford, 277 F.3d
1311, 1316 (11th Cir. 2002) (per curiam). Counts should be grouped together for
guideline calculation purposes when they “involv[e] substantially the same harm,”
such as when they “involve the same victim and the same act” or “involve the
same victim and two or more acts . . . connected by a common criminal objective
or constituting part of a common scheme or plan.” U.S.S.G. § 3D1.2(a)–(b). We
need not decide a guidelines issue or remand for new sentencing proceedings,
however, when the district court expressly states that it would have imposed the
same sentence regardless of its ruling on the issue, and the sentence would have
been reasonable assuming the issue was decided in the defendant’s favor. See
United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).
3
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We review the reasonableness of a sentence for abuse of discretion, see Gall
v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007), and we will vacate a
sentence imposed by a district court only when left with a “definite and firm
conviction that the district court committed a clear error of judgment,” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation
marks omitted). The court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, deter criminal conduct, and
protect the public from the defendant’s future criminal conduct. See § 3553(a)(2).
We have stated that, “when the district court imposes a sentence within the
advisory Guidelines range, we ordinarily will expect that choice to be a reasonable
one.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (internal
quotation marks omitted). And we have found that “[a] sentence imposed well
below the statutory maximum penalty is an indicator of a reasonable sentence.”
United States v. Dougherty, 754 F.3d 1353, 1362, 1364 (11th Cir. 2014), cert.
denied, 135 S. Ct. 1186 (2015) (holding that the sentence was reasonable in part
because it was well below the statutory maximum).
II.
Here, we need not decide whether the district court erred in failing to group
Adeneye’s two counts of conviction because any error in that regard was harmless.
4
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See Keene, 470 F.3d at 1349. The district court imposed a total sentence below the
calculated advisory guideline range and within the advisory guideline range
Adeneye proposes, so harmless error analysis is appropriate. See United States v.
Barner, 572 F.3d 1239, 1248 (11th Cir. 2009). Moreover, the district court stated
multiple times that it sentenced Adeneye to 13 months’ imprisonment because it
thought the sentence was reasonable and that it would have imposed the same
sentence even if his two counts of conviction had grouped. See id.; see also Keene,
470 F.3d at 1348–49.
Additionally, a 13-month total sentence would have been substantively
reasonable even if the district court had grouped the counts of conviction. See
Keene, 470 F.3d at 1349–50. The district court stated that it had considered the §
3353(a) factors and found a 13-month total sentence to be reasonable. It did not
have to lay the factors out one by one. See United States v. Robles, 408 F.3d 1324,
1328 (11th Cir. 2005) (per curiam) (noting that district courts do not have to
conduct an accounting of every § 3553(a) factor and explain the role each played
in the sentencing decision). The court specifically addressed how it focused on
deterrence, and it was within the court’s discretion to give that factor greater
weight. See Snipes, 611 F.3d at 872 (noting that we will not “second guess the
weight” accorded to a given factor (internal quotation marks omitted)); see also 18
U.S.C. § 3553(a)(2).
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Further, the advisory guideline range would have been 12 to 18 months’
imprisonment if the counts were grouped, while the advisory guideline range was
18 to 24 months with the counts not grouped. Thus, a 13-month total sentence was
within the 12-to-18-month guideline range that would have applied even if the
counts had been grouped, which indicates reasonableness. See, e.g., Snipes, 611
F.3d at 872. Moreover, the concurrent 13-month sentences fell far below the
applicable 5-year maximum sentences, further evidencing the reasonableness of
the total sentence imposed.4 See Dougherty, 754 F.3d at 1362. Based on the
foregoing, even if Adeneye’s counts of conviction had been grouped, the 13-month
total sentence that the court stated that it would have imposed regardless would not
leave us with “the definite and firm conviction that the district court committed a
clear error of judgment.” Irey, 612 F.3d at 1190 (internal quotation marks
omitted). Therefore, after careful consideration of the record and the parties’
arguments on appeal, we affirm the district court.
AFFIRMED.
4
Escape from custody carries a statutory maximum of five years’ imprisonment.
18 U.S.C. § 751(a). Failure to surrender for service of a sentence for an offense punishable by
imprisonment for five years or more is punishable by a maximum of five years’ imprisonment.
18 U.S.C. § 3146(a)(2), (b)(1)(A)(ii).
6