United States v. Alphonso George Lawrence , 367 F. App'x 976 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11463 ELEVENTH CIRCUIT
MARCH 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00411-CR-T-26-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALPHONSO GEORGE LAWRENCE,
a.k.a. Anthony Townsend,
a.k.a. James G. Parrish,
a.k.a. Paul Greg Reed,
a.k.a. Randall Smith,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 3, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Alphonso George Lawrence appeals his sentence of 60 months of
imprisonment following his plea of guilty to reentering the United States illegally
after conviction of an aggravated felony. 8 U.S.C. §§ 1326(a), (b)(2). Lawrence
argues that his sentence is unreasonable, and the government renews its argument
that Lawrence’s appeal is barred by the waiver in his plea agreement. We affirm.
Lawrence entered an agreement to plead guilty to reentering the United
States illegally in exchange for three recommendations by the government that
Lawrence receive a sentence within the “applicable guidelines range as determined
by the Court”; a two-level downward adjustment for his acceptance of
responsibility, United States Sentencing Guideline § 3E1.1(a) (Nov. 2007); and a
four-level downward departure for his participation in the Fast Track Prosecution
Program, id. § 5K3.1. “In consideration for participation in the Fast Track
Program,” Lawrence agreed to waive the right to “directly appeal” or “collaterally
challenge” his “conviction, sentence, and any aspect of or matter relating to the
prosecution.”
At his change of plea hearing, Lawrence affirmed that he “under[stood] the
significance of [the] proceeding and how it affect[ed]” him; he had reviewed and
discussed with counsel “in detail each and every term of [the] agreement and how
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it affect[ed]” him; and he had agreed to “each and every term and provision of
[the] agreement.” Lawrence acknowledged that he could not withdraw his plea of
guilt if the district court rejected the recommendations of the government to reduce
Lawrence’s base offense level, calculated the sentencing range differently from
defense counsel, or imposed a sentence above the advisory guideline range. The
district court asked Lawrence if he understood what rights he relinquished to
participate in the fast track program, which included the right to appeal or
challenge collaterally his sentence, and Lawrence responded affirmatively. The
district court later accepted Lawrence’s plea of guilty.
The presentence investigation report provided a base offense level of 8,
U.S.S.G. § 2L1.2(a), increased that level by eight points because Lawrence had
been deported or remained unlawfully in the United States after conviction of an
aggravated felony, id. § 2L1.2(b)(1)(C), and then decreased that level by three
points for Lawrence’s acceptance of responsibility, id. § 3E1.1. Based on a
criminal history of III, the report provided a sentencing range between 18 and 24
months of imprisonment. The report stated that Lawrence might qualify for an
upward departure based on his criminal history. Id. § 4A1.3.
The presentence report listed Lawrence’s 14 aliases and detailed his
extensive encounters with federal and state authorities. The report stated that
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Lawrence had been deported from the United States in 1986, after he attempted to
enter the country using an altered passport, and again in 1990 and 2003, after he
was convicted of reentering the United States illegally. The report provided
Lawrence’s extensive criminal history, which included an arrest in 1987 for traffic
offenses; convictions in 1987 and 1988 for loitering, unlawful use of a license, and
carrying a concealed firearm; a charge in 1989 that he had stabbed an inmate in the
back with a screwdriver; an arrest in 1989 for attempting to bribe an employee of
the Florida Department of Motor Vehicles to issue a fraudulent driver’s license; an
arrest in 2002 for grand theft auto; and an arrest in 2007 for being a felon in
possession of a firearm. The report also mentioned two other criminal incidents
involving Lawrence: a traffic stop in 1998 for speeding, from which Lawrence had
been released after he represented that he was a legal resident; and an arrest in
2007 for charges of attempted first degree murder, aggravated battery, and
shooting into a vehicle, which had been nol prossed.
Lawrence objected to the report and argued that the district court should not
consider his uncharged misconduct. At the sentencing hearing, the district court
overruled Lawrence’s objection. The government moved for Lawrence to receive
a four-point downward departure for his participation in the fast track program and
stated that the request was made in exchange for Lawrence “giv[ing] up all right[s]
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to appeal.” After an extensive discussion about the effect of denying the
downward departure, the district court found that Lawrence was “technically
eligible” for the departure. The district court calculated Lawrence’s total offense
level at 9, which provided a sentencing range between 8 and 14 months of
imprisonment.
The district court recited Lawrence’s extensive background and concluded
that a sentence within the Sentencing Guidelines would not be reasonable. The
district court described Lawrence’s criminal history as “horrendous” and decided
to vary upward from the sentencing range based on the sentencing factors, 18
U.S.C. § 3553(a). The district court stated that it could not “justify” sentencing
Lawrence to 14 months of imprisonment when the court had sentenced another
defendant, who had not been eligible for the fast track program, to 46 months for
reentering the United States illegally and that defendant was “citizen of the year . .
. compared to” Lawrence. The district court stated that the sentencing factors, 18
U.S.C. § 3553, and in particular “the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, to provide just
punishment for the offense and to afford adequate deterrence to criminal conduct, .
. . reasonably justif[ied] an upward variance.” The district court sentenced
Lawrence to 60 months of imprisonment and 3 years of supervised release.
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Lawrence appealed and argued that he did not waive his right to appeal his
sentence knowingly and voluntarily. The government moved to dismiss the
appeal. We denied the motion summarily and instructed the government “to file a
brief on the merits.” The government again argues in its brief that the appeal
waiver bars Lawrence from challenging his sentence, but we need not revisit this
issue because Lawrence’s argument is meritless in any event.
Lawrence argues that his sentence is unreasonable because the district court
varied upward based “entirely” on its implicit disagreement with the disparity
between the sentencing range provided for Lawrence under the fast track program
and the sentence imposed on another offender who was not eligible for the
program, but we disagree. The district court explained that its decision to vary
upward was based on Lawrence’s “history and characteristics,” which were so
“horrendous” “that the advisory guideline range just [did] not fix the parameters of
what [the court] would consider to be a reasonable sentence.” The district court
correctly calculated the advisory guideline range of 8 to 14 months, but the district
court reasonably determined that the sentencing range did not adequately reflect
Lawrence’s extensive criminal history. See United States v. Shaw, 560 F.3d 1230,
1237–40 (11th Cir. 2009). The district court determined that a sentence of 60
months of imprisonment was necessary to deter Lawrence from future similar
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crimes, protect the public against those potential crimes, and provide a just
punishment. See 18 U.S.C. §§ 3553(a), (c); United States v. Livesay, 525 F.3d
1081, 1090 (11th Cir. 2008) (discussing Gall v. United States, 552 U.S. 38, 128 S.
Ct. 586 (2007), and Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456 (2007)).
Lawrence has illegally reentered the United States three times since his first
deportation and each time has committed additional crimes. See United States v.
Burge, 407 F.3d 1183, 1188 (11th Cir. 2005) (“‘The sentencing factor at issue
here—recidivism—is a traditional, if not the most traditional, basis for a
sentencing court’s increasing an offender’s sentence.’” (quoting
Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230
(1998)). The district court did not abuse its discretion by sentencing Lawrence to a
term of imprisonment of 60 months.
We AFFIRM Lawrence’s sentence.
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