United States v. Roderick Myron Stevenson , 310 F. App'x 293 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 4, 2008
No. 08-10237 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00041-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERICK MYRON STEVENSON,
a.k.a. Mouse,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 4, 2008)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Roderick Myron Stevenson appeals his 235-month sentence for conspiracy
to distribute and possess with intent to distribute more than 50 grams of a mixture
or substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), and 846. Stevenson argues that the district court clearly erred in
determining the amount of drugs attributable to him because the court held him
accountable for drugs sold by co-conspirators prior to the date he joined the
conspiracy. The government contends that Stevenson’s first issue is barred by the
doctrines of the law-of-the case and waiver. Stevenson also argues that his 235-
month sentence is unreasonable. For the reasons set forth more fully below, we
affirm.
In a one-count fifth superceding indictment, Stevenson and eight others were
charged with conspiracy to distribute and to possess with intent to distribute a
controlled substance between January 1, 2001, and July 31, 2003. Stevenson pled
no contest to the charge.
According to the PSI that was prepared, Stevenson, who was a Polk County
Deputy Sheriff, received cash from co-conspirators in exchange for information
and “protection” of individuals in a location called “the hole,” “thus allowing the
continued distribution of drugs in that area.” The probation officer determined that
Stevenson was accountable for drug amounts totaling at least 4 kilograms of
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powder cocaine and at least 46.3 kilograms of crack cocaine, which he derived
from transactions that occurred between January 1, 2001, and July 23, 2003.
Stevenson objected to the probation officer’s determination of the drug
quantity for which he was accountable. Stevenson argued that he should not have
been responsible for drugs sold prior to the beginning of 2003.
At the initial sentencing hearing, Florida Department of Law Enforcement
(“FDLE”) Agent Beth Torres testified that, according to Polk County Sheriff’s
Office records, Stevenson was assigned to “the hole” from August 2000 to
February 2004. Stevenson testified that he was assigned to “the hole” in January
2002, but he did not specify who assigned him there. He also testified about his
medical condition.
The district court overruled Stevenson’s objection with regard to the drug
quantities. In light of Stevenson’s medical condition, the court ordered a study and
reporting, pursuant to 18 U.S.C. § 3552(b). After the report was returned, the court
sentenced Stevenson to 292 months’ imprisonment.
Stevenson appealed his conviction and his sentence. We affirmed
Stevenson’s conviction, but vacated his sentence in its entirety and remanded for
resentencing. United States v. Stevenson, 240 Fed.Appx. 343, 347 (11th Cir.
2007).
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Before the resentencing hearing, Stevenson filed a “Motion to Modify
Sentence Below the Guideline Level, Sentencing Memorandum and Objection to
Mathematical Calculation of Sentencing Range,” and he attached several
supporting documents, including numerous support letters. Stevenson adopted all
of his previous objections to the PSI.
At the resentencing hearing, the court recalculated Stevenson’s total offense
level and his Guidelines range. Each side presented testimonial evidence from
healthcare professionals. Stevenson himself also testified. Stevenson stated that
he had been in pain ever since he was incarcerated and had a recurring eye
infection that required surgery. Stevenson also stated that most of the medications
that he had been prescribed before he was incarcerated had not been given to him
while he was in prison. After both parties presented closing arguments, the court
overruled Stevenson’s objections to the PSI and sentenced him to 235 months’
imprisonment.
I.
As an initial matter, we vacated Stevenson’s initial sentence in its entirety,
and, therefore, the district court’s findings and conclusions made during the initial
sentencing were “wiped away by the vacatur,” which rendered it void in its
entirety. See United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).
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Accordingly, Stevenson’s first issue is neither barred by the doctrine of the law-of-
the-case nor the doctrine of waiver.
II.
We review for clear error the district court’s factual determination of the
drug quantity for which Stevenson is accountable. United States v. Rodriguez, 398
F.3d 1291, 1296 (11th Cir. 2005).
“Section 2D1.1 of the [G]uidelines provides that the base offense level for a
possession or a conspiracy drug offense is ordinarily calculated by determining the
quantity of drugs attributable to a defendant.” Id. “Relevant conduct” for
conspirators includes: “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity that occurred during the
commission of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that offense.”
U.S.S.G. § 1B1.3(a)(1)(B) (2007).
Specifically, in a case involving drugs, the conspirator’s relevant conduct
includes amounts directly attributable to the conspirator and “all reasonably
foreseeable quantities of [drugs] that were within the scope of the criminal activity
that [the conspirator] jointly undertook.” U.S.S.G. § 1B1.3, comment. (n.2). “A
defendant’s relevant conduct does not include the conduct of members of a
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conspiracy prior to the defendant joining the conspiracy, even if the defendant
knows of that conduct.” Id. The “scope of the criminal activity that [the
conspirator] jointly undertook,” however, is not the same as the scope of the entire
conspiracy; rather, the jointly undertaken criminal activity is limited to “the scope
of the specific conduct and objectives embraced by the defendant’s agreement.”
Id. Similarly, “the criminal activity that the defendant agreed to jointly undertake,
and the reasonably foreseeable conduct of others in furtherance of that criminal
activity, are not necessarily identical.” Id.
We have stated that:
to determine a defendant’s liability for the acts of others, the district
court must first make individualized findings concerning the scope of
criminal activity undertaken by a particular defendant. Once the
extent of a defendant’s participation in the conspiracy is established,
the court can determine the drug quantities reasonably foreseeable in
connection with that level of participation. If the court does not make
individualized findings, the sentence may nevertheless be upheld if
the record supports the amount of drugs attributed to a defendant. The
government must establish the quantity of drugs by the preponderance
of the evidence.
United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993) (citations omitted).
In this case, Stevenson does not contest the probation officer’s finding with
respect to his accountability for the drugs sold by conspirators after 2003. Thus,
the only issue is whether the record supports the court’s finding that Stevenson was
accountable for the drugs sold by conspirators between January 1, 2001, and
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November 2002.
Although the district court did not make an explicit individualized finding
with respect to when Stevenson joined the conspiracy, the court did state at the
resentencing hearing that Stevenson could reasonably foresee that numerous drug
sales were going on at “the hole,” and Stevenson participated in those sales by
offering his protection as a deputy sheriff. Because there was evidence that
Stevenson worked “the hole” between August 2000 and February 2004, the court
did not clearly err in finding that Stevenson’s “relevant conduct” for purposes of
calculating his base offense level included the drugs sold by the conspiracy
between January 1, 2001, and November 2002. See U.S.S.G. § 1B1.3 & comment.
(n.2); Rodriguez, 398 F.3d at 1296; Ismond, 993 F.2d at 1499.
III.
“‘In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the
§ 3553(a) factors.’”1 United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006)
(citation omitted). A sentence is unreasonable if it “fails to achieve the purposes of
1
The government claims that we should limit our review to plain error because Stevenson
failed to object to the reasonableness of his sentence. However, Stevenson did object on the basis
that the district court abused its discretion in imposing the sentence. As the Supreme Court clarified
the reasonableness standard as a review for abuse of discretion, Stevenson did preserve this issue
for appellate review. See Gall v. United States, 552 U.S. —, 128 S.Ct. 586, 594, 169 L.Ed.2d 445(2007). Moreover, the outcome is the same under either a plain error or reasonableness review
standard.
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sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). The party challenging the reasonableness of a sentence
“bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).” Id.The district court must impose a sentence that is both procedurally and
substantively reasonable. Gall, 128 S.Ct. at 597. When reviewing the sentence for
procedural reasonableness, we must
ensure that the district court committed no significant procedural
error, such as 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.
Id.
In considering the substantive reasonableness of the sentence, “Gall makes
clear that ‘it also remains true that the district court’s choice of sentence is not
unfettered.’” United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008)
(citations and quotation marks omitted). “[T]he district court is obliged to consider
all of the § 3553(a) factors, and those factors in turn guide appellate courts, as they
have in the past, in determining whether a sentence is unreasonable.” Id.
(citations, quotations, and punctuation marks omitted).
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“Generally, when sentencing within the advisory Guidelines range, the
district court is not required to give a lengthy explanation for its sentence if the
case is typical of those contemplated by the Sentencing Commission.” Id. at 1090;
see also 18 U.S.C. § 3553(c). However, the sentencing judge should “set forth
enough to satisfy the appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking authority.”
Rita v. United States, 551 U.S. —, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007).
Although we do not apply a presumption of reasonableness, “ordinarily we would
expect a sentence within the Guidelines range to be reasonable.” Talley, 431 F.3d
at 788.
“[A] district court’s ‘unjustified reliance on any one Section 3553(a) factor
may be a symptom of an unreasonable sentence.’” See United States v. Crisp, 454
F.3d 1285, 1292 (11th Cir. 2006). However, a sentence is not necessarily
unreasonable where a court attaches great weight to one factor. See Gall, 128 S.Ct.
at 602 (holding that a district court did not commit reversible error simply because
it “attached great weight” to one factor). “The weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court.”
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation omitted).
The § 3553(a) factors include: (1) the nature and circumstances of the
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offense and the history and characteristics of the defendant; (2) the need to reflect
the seriousness of the offense, to afford adequate deterrence, to promote respect for
the law, to provide just punishment for the offense, to protect the public, and to
provide the defendant with needed educational or vocational training or medical
care; (3) the kinds of sentences available; (4) the advisory guidelines range; (5)
pertinent Sentencing Commission policy statements; (6) the need to avoid
unwarranted sentencing disparities; and (7) the need to provide restitution to
victims. 18 U.S.C. § 3553(a)(1)-(7).
Stevenson has not demonstrated that his sentence is unreasonable.2 The
district court was aware of Stevenson’s history and characteristics, including his
medical condition, because, inter alia, it heard testimony from (1) two healthcare
professionals and (2) Stevenson. See 18 U.S.C. § 3553(a)(1). The court
specifically noted that it had demonstrated its concern for Stevenson’s condition
when it ordered an evaluation to determine whether or not the BOP had adequate
facilities. See 18 U.S.C. § 3553(a)(1). Moreover, the court stated that it read all of
Stevenson’s support letters and was fully aware of Stevenson’s “background, how
2
Additionally, the record does not support Stevenson’s contention that the district court
“disallowed” the testimony of his 13 witnesses at the resentencing hearing. By Stevenson’s own
admission, the testimony from the 13 witnesses was “basically” already in the record, and the court
told Stevenson that it wanted him to put on everything he wanted, but it did not “want just a repeat
of everything.”
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he went to college, how he got a master’s, what he did in the service, . . . [and] how
he got the nickname mouse.” See 18 U.S.C. § 3553(a)(1).
The district court discussed the nature and circumstances of the offense
when it noted (1) the seriousness of the offense and (2) how Stevenson had
violated the trust of the people by using his position as a law enforcement officer to
commit the offense. See 18 U.S.C. § 3553(a)(1). The court discussed Stevenson’s
lack of respect for the law and noted the advisory Guidelines range. See 18 U.S.C.
§ 3553(a)(2)(A), (a)(4). Significantly, the court stated that it considered “the
[G]uideline range, the circumstances of the offense, the need for the sentence to
promote respect for the law, the necessity of the sentence to provide just
punishment[,] and the necessity of the sentence to provide [Stevenson] with
medical care.” See 18 U.S.C. § 3553(a)(1), (a)(2)(A), (B), (D), (a)(4). The court
also stated that it had considered the policy statements. See 18 U.S.C.
§ 3553(a)(5). Therefore, the record does not support Stevenson’s contention that
the court unjustifiably relied upon any one § 3553(a) factor, and, although the court
may have placed great emphasis on the fact that Stevenson was a deputy sheriff, it
does not follow that his sentence was necessarily unreasonable. See Gall, 128
S.Ct. at 602; Clay, 483 F.3d at 743; Crisp, 454 F.3d at 1292.
The district court was not required to give a lengthy explanation for its
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decision to impose a Guidelines sentence. See Livesay, 525 F.3d at 1090.
Nonetheless, as discussed above, the record reflects that the court did consider the
§ 3553(a) factors in determining an appropriate sentence. See id. at 1091. As
such, Stevenson’s contention that the record is insufficient to review the
reasonableness of his sentence is without merit.
Stevenson’s 235-month sentence is at the low-end of the Guidelines range
and well below the statutory maximum of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(iii); Talley, 431 F.3d at 788; United States v. Winingear, 422 F.3d
1241, 1246 (11th Cir. 2005) (comparing, as one indication of reasonableness, the
actual prison term imposed against the statutory maximum). The record reflects
that the court considered Stevenson’s arguments and support letters, and the court
had a reasoned basis for exercising its own legal decisionmaking authority. See
Rita, 127 S.Ct. at 2468. Thus, Stevenson has not shown that the court abused its
discretion by imposing an unreasonable sentence. See Gall, 128 S.Ct. at 594.
In light of the foregoing, Stevenson’s sentence is
AFFIRMED.
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