United States v. Cedric Bell , 537 F. App'x 883 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10063
Non-Argument Calendar
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D.C. Docket No. 7:12-cr-00012-HL-TQL-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC BELL,
a.k.a. CEDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(October 9, 2013)
Before DUBINA, MARCUS, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Cedric Bell appeals his 18-month sentence -- a variance from the guideline
range of 4 to 10 months -- imposed after he pleaded guilty to misprision of a
felony, in violation of 18 U.S.C. § 4. On appeal, Bell argues that his sentence is
procedurally and substantively unreasonable because the district court based the
upward variance on conduct comprising the essential elements of misprision of a
felony. He contends that the court wrongly understood the misprision of a felony
statute to require only that a person fail to report a felony to authorities, instead of
the correct reading of the statute: the correct reading also requires that the
defendant conceal or participate in the underlying felony. Thus, Bell argues, his
conduct participating in the underlying felonies merely constituted essential
elements of the offense and could not be used to vary upward.
We review all sentences for reasonableness under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591,
169 L. Ed. 2d 445 (2007). The party challenging the sentence carries the burden to
demonstrate that it is unreasonable. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). When a sentencing argument is raised for the first time on
appeal, we review only for plain error. United States v. Bonilla, 579 F.3d 1233,
1238 (11th Cir. 2009).
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“Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not as soon as
possible make known the same to [authorities], shall be fined under this title or
imprisoned not more than three years, or both.” 18 U.S.C. § 4. “Misprision of a
felony ‘requires both knowledge of a crime and some affirmative act of
concealment or participation.’” Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir.
2002).
I. Procedural Reasonableness
In determining reasonableness, we must determine whether the district court
committed a “significant procedural error” by “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51,
128 S.Ct. at 597.
As an initial matter, because Bell did not object before the district court that
the court erred in treating conduct that comprised the elements of the offense as
aggravating factors, we review his argument for plain error. See Bonilla, 579 F.3d
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at 1238. Although Bell is correct that misprision of a felony requires an
affirmative act of concealment or participation in the underlying felony, no
evidence suggests that the district court misunderstood the required elements of the
offense. See 18 U.S.C. § 4; Itani, 298 F.3d at 1216. Never did the court say or
distinctly indicate (as Bell suggests it did) that the simple failure to report a felony
was the only element of the offense. Thus, Bell has not carried his burden of
showing that the district court did not understand the elements of the offense and
committed procedural error, based on a misinterpretation of the criminal statute.
II. Substantive Reasonableness
The district court is required to impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” listed in 18 U.S.C.
§ 3553(a)(2), including the need for the sentence imposed to reflect the seriousness
of the offense, promote respect for the law, provide just punishment for the
offense, deter criminal conduct, and protect the public from future criminal
conduct. 18 U.S.C. § 3553(a)(2)(A)-(C). A district court must also consider the
nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, and the applicable guideline range. Id.
§ 3553(a)(1), (a)(3)-(4).
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We will not remand for resentencing unless “the district court committed a
clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences.” United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008). Imposition of a sentence well below the
statutory maximum is an indication of reasonableness. See United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (considering that defendant’s
sentence was well below the statutory maximum in finding the sentence
reasonable). A sentence may be substantively unreasonable if it is based on an
impermissible factor. Pugh, 515 F.3d at 1191-92. But “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court, and we will not substitute our judgment in weighing the
relevant factors.” United States v. Langston, 590 F.3d 1226, 1237 (11th Cir.
2009).
Extraordinary justification or rigid mathematical formulas are not required
for a sentence outside the guidelines range, but the district court should explain
why the variance is appropriate in a particular case and the justification for the
variance must be “sufficiently compelling to support the degree of the variance.”
Gall, 552 U.S. at 47, 50, 128 S.Ct. at 595, 597. We must give deference to the
district court’s decision that the § 3553(a) factors justify the extent of the variance.
Id. at 51, 128 S.Ct. at 597.
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In imposing an upward variance, the district court may consider information
about a defendant’s “background, character, and conduct.” United States v. Tome,
611 F.3d 1371, 1379 (11th Cir. 2010); see also 18 U.S.C. § 3661 (“No limitation
shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence.”).
Because Bell argued before the district court that his sentence unreasonably
exceeded the guideline range, his substantive reasonableness argument has been
preserved. Nevertheless, the district court did not abuse its discretion in imposing
the above-guideline, 18-month sentence. See Gall, 552 U.S. at 41, 128 S.Ct. at
591. The record shows that the district court considered Bell’s advisory guideline
range, but determined that the § 3553(a) factors required a greater sentence. The
court properly considered that Bell arranged and was present during the sale of
stolen items, and that he accompanied co-conspirator Robert Kier to a home that
Kier had burglarized: this information was relevant to Bell’s background,
character, and conduct. See 18 U.S.C. § 3661; Tome, 611 F.3d at 1379. Thus,
because the court was permitted to consider Bell’s conduct in imposing the
sentence, it did not base its sentence on an impermissible factor. See Pugh, 515
F.3d at 1191-92. Furthermore, the court adequately explained its reasons --
chiefly, more than minimally significant criminal participation -- for the variance,
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and the justification for the variance was sufficiently compelling to support it. See
Gall, 552 U.S. at 50, 128 S.Ct. at 597. To the extent that Bell urges us to re-weigh
the § 3553(a) factors to place greater emphasis on his mitigating factors, we will
not do so. See Langston, 590 F.3d at 1237. Finally, Bell’s 18-month sentence fell
well below his 3-year statutory maximum sentence, another indicator of
reasonableness. See Gonzalez, 550 F.3d at 1324.
In sum, Bell has not shown that his sentence was procedurally or
substantively unreasonable. Accordingly, we affirm.
AFFIRMED.
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