United States v. Freddie McCloud ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ JAN 22, 2008
THOMAS K. KAHN
No. 07-12509 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00009-CR-001-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDIE MCCLOUD,
a.k.a. Freddie McLeoud,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 22, 2008)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Freddie McLeoud1 appeals his 180-month sentence for carjacking and
brandishing a firearm during a crime of violence, in violation of 18 U.S.C. §§ 2119and 924(c), respectively. In committing the offenses for which he was convicted,
McLeoud stuck a loaded pistol in the victim’s face, stole her vehicle, and led law
enforcement on a high-speed chase. During the police pursuit, McLeoud drove over
100 miles per hour, ran a red light and evaded a roadblock. Finding that the
guidelines failed to recognize the potential for death and serious bodily injury created
by McLeoud’s behavior, the district court upwardly varied from the guidelines range
by 33 months, sentencing McLeoud to 180 months imprisonment. McLeoud
contends on appeal that the upward variance was unreasonable and based in part on
the district court’s consideration of an impermissible factor, namely, the court’s belief
that McLeoud had not been forthcoming regarding the involvement of his co-
defendants.
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district
court determines a reasonable sentence by correctly calculating the sentencing range
under the guidelines and then considering the factors set forth in 18 U.S.C. § 3553(a).
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (overuled on other
1
Although captioned in this case as “McCloud,” Appellant’s last name is actually spelled
“McLeoud.”
2
grounds by Rita v. United States, --- U.S. ---- , 127 S. Ct. 2456 (2007) (holding that
appellate courts may apply a presumption of reasonableness to a within-guidelines
sentence)). Section 3553(a) requires a sentencing court to “impose a sentence
sufficient, but not greater than necessary” after considering:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence (A) to reflect
the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense, (B) to afford adequate deterrence to
criminal conduct, and (C) to protect the public from further crimes of the
defendant; (3) the kinds of sentences available; (4) the Sentencing
Guidelines range; (5) pertinent policy statements of the Sentencing
Commission; and (6) the need to avoid unwarranted sentencing disparities.
18 U.S.C. § 3553(a)(1)-(6).
As the Supreme Court’s recent decision in Gall v. United States, No. 06-7949,
slip op., 2007 WL 4292116 (Dec. 10, 2007) makes clear, appellate courts review
district court sentences for abuse of discretion. Gall, No. 06-7949, slip op. at 10-11.
The Court stated that district courts
must make an individualized assessment based on the facts presented. If
[the court] decided that an outside-Guidelines sentence is warranted, [the
court] must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of variance. . . .
After settling on the appropriate sentence, [the court] must adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.
Id. at 12. Appellate review of the district court’s sentencing decision must give “due
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deference” to the court’s determination that the § 3553(a) factors justify the variance.
Id. at 12-13.
In this case, the district court found that the guidelines did not adequately
recognize the danger McLeoud’s behavior created for others. The court pointed to
McLeoud’s putting a loaded weapon in the victim’s face, leading the police on a
high-speed chase, and running through a roadblock as behavior that posed a serious
risk of death or bodily injury to others. Finding that the guideline range failed to
provide for an adequate punishment in light of this dangerous behavior, the court
upwardly varied from the sentence range indicated by the guidelines. In so doing, the
court explained its reasons, which reflect appropriate consideration of the § 3553(a)
factors. The district court’s reasoning and explanation for the variance are consistent
with the standard for sentencing decisions set out in Gall. Accordingly, we can find
no abuse of discretion in the district court’s sentencing decision.
Whether the district court considered an impermissible factor in sentencing the
defendant is a question of law that we review de novo. United States v. Robinson,
935 F.2d 201, 203 (11th Cir. 1991) (“The application of the law to sentencing issues
is subject to de novo review.”). However, when a defendant fails to object, despite
being given the opportunity to do so, we generally limit our review to manifest
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injustice or plain error.2 United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir.
1998).
McLeoud argues that, when determining his sentence, the district court
impermissibly considered McLeoud’s refusal to cooperate with the authorities in
investigating his co-defendants. Because McLeoud did not object below, we review
this claim for plain error. The sentencing guidelines state that “[a] defendant’s refusal
to assist authorities in the investigation of other persons may not be considered as an
aggravating sentencing factor.” U.S. Sentencing Guidelines Manual § 5K1.2 (2006).
Upon review of the sentencing transcript, we find that the district court did not
impermissibly consider McLeoud’s failure to assist the authorities. The court
believed that McLeoud had not been forthcoming with either the investigating
authorities or the court, but considered this in conjunction with the § 3553(a) factors,
one of which is the characteristics of the defendant. Because the district court did not
consider an impermissible factor and based its upward variance on the serious danger
McLeoud’s conduct posed to others, the court’s sentence is
AFFIRMED.
2
“Under the plain error standard, [the appellant] must show that: (1) an error occurred;
(2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the
fairness of the judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir.
2003).
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