United States v. Zabare Royal ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10424 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 8, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00337-ODE-ECS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellee,
versus
ZABARE ROYAL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 8, 2011)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Zabare Royal appeals his below-the-guidelines-range sentence of 149
months imprisonment, which he received after pleading guilty conspiracy to
commit three carjackings, aiding and abetting a carjacking, and aiding and
abetting the use and carrying of a firearm during the commission of a violent
crime. Royal contends that his sentence is procedurally and substantively
unreasonable.
I
On June 29, 2009 Zabare Royal, Kevin King, and Corey Bolden carjacked a
victim at gunpoint. About five hours later they committed another carjacking.
Two days later they committed yet another carjacking, again at gunpoint.
A few days later King and Bolden were arrested. Two days after that Royal
was arrested. Royal admitted to taking part in the carjackings. He also confessed
to committing two other armed robberies. Royal was charged with conspiracy to
commit three carjackings, aiding and abetting a carjacking, and aiding and
abetting the use and carrying of a firearm during the commission of a violent
crime. Royal pleaded guilty to all three counts.
Under the sentencing guidelines Royal had a base offense level of 20. He
received a 5-level enhancement for brandishing a firearm, a 2-level enhancement
because the offense involved a carjacking, and a 1-level enhancement because the
loss was more than $10,000, for an adjusted offense level of 28. After applying
the multiple count adjustment for the three separate carjackings, a 3-level
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reduction for acceptance of responsibility, and 2-level reduction the district court
gave Royal for his minor role in the carjackings, he had a total offense level of 26.
His criminal history resulted in 8 criminal history points and a category score of
IV. Accordingly, the recommended sentence range under the guidelines was 176
to 199 months imprisonment.
At the sentence hearing Royal asked for a below-the-guidelines-range
sentence of 120-months imprisonment. He pointed out that he had a tragic
childhood and argued that he deserved a lower sentence than his co-defendants
Bolden and King, who received sentences of 144 months and 200 months,
respectively. The government asked for a sentence between 144 and 158 months
imprisonment, arguing that such a sentence would take into account the nature of
Royal’s crimes and his personal history. The district court then explained:
In this case I think looking at the personal factors, I hear you
saying that Mr. Royal stated that he was coerced. I’m not sure thats true.
I think it’s probably not true. I think he participated voluntarily. He’s
probably the smartest of the three people that were involved in this
offense.
He, on the other hand, has had a difficult childhood. He hasn’t
had the benefits of a stable home. I think the offense that he committed
is very serious. An armed carjacking is a very serious offense. People
could have been killed. I think the sentence has to reflect that this is a
very serious matter.
I think the sentence has to be adequate to deter Mr. Royal from
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doing this kind of thing in the future. I’m inclined to think that he may
not. I certainly hope that. I think he has a chance of coming out and
starting a new life and doing a lot better.
As I said, I think Mr. Royal is just marginally more culpable than
Mr. Bolden. It’s kind of close. He’s less culpable than Mr. King.
The district court sentenced Royal to total of 149 months imprisonment—5
months longer than Bolden, 51 months less than King, and 27 months below the
bottom of the applicable guidelines range.
II.
“We review the reasonableness of a sentence for abuse of discretion using a
two-step process.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We first determine “whether the district court committed any significant
procedural error,” and we then determine “whether the sentence is substantively
reasonable under the totality of the circumstances.” Id. “The party challenging
the sentence bears the burden to show it is unreasonable in light of the record and
the § 3553(a) factors.” Id.
“A sentence may be procedurally unreasonable if the district court
improperly calculates the Guidelines range, treats the Guidelines as mandatory
rather than advisory, fails to consider the appropriate statutory factors, selects a
sentence based on clearly erroneous facts, or fails to adequately explain the chosen
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sentence.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).
Royal argues that the district court relied on clearly erroneous facts because it
stated that Royal was smarter than Bolden and King, and that Royal was
“marginally” more culpable than Bolden but less culpable than King. The district
court made those statements after observing Royal and his co-conspirators. Royal
has not pointed to any evidence proving that those statement were clearly
erroneous.
When determining if a sentence is substantively unreasonable, “we must, as
the Supreme Court has instructed us, consider the totality of the facts and
circumstances.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010). We
will vacate a sentence for substantive unreasonableness only if “we are left with
the definite and firm conviction that 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 dictated by the facts of the case.” Id. at
1190 (quotation marks omitted). The totality of the circumstances show that
Royal’s sentence was reasonable. His below-the-guidelines-range sentence takes
into account the serious nature of the crimes, his role in the crimes, his criminal
history, and his personal history.
AFFIRMED.
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