United States v. Ishmael Ford-Bey , 705 F. App'x 175 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISHMAEL BAITH FORD-BEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District Judge. (8:13-cr-00492-DKC-2)
Submitted: November 16, 2017 Decided: November 29, 2017
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven M. Klepper, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant.
Stephen M. Schenning, Acting United States Attorney, David Metcalf, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ishmael Baith Ford-Bey appeals from his 360-month sentence imposed on remand
for resentencing. On appeal, Ford-Bey contends that his sentence was both substantively
and procedurally unreasonable because the district court failed to properly consider the
evidence of Ford-Bey’s rehabilitation and change of character. We affirm.
The Supreme Court held in Pepper v. United States, 562 U.S. 476, 490 (2011),
that “when a defendant’s sentence has been set aside on appeal and his case remanded for
resentencing, a district court may consider evidence of a defendant’s rehabilitation since
his prior sentencing and that such evidence may, in appropriate cases, support a
downward variance from the advisory Guidelines range.” The Court noted that
post-sentencing rehabilitation “provides the most up-to-date picture of [a defendant’s]
‘history and characteristics’” and “sheds light on the likelihood that he will engage in
future criminal conduct, a central factor that district courts must assess when imposing
sentence.” Id. at 492. However, the Court made clear that district courts are not required
to reduce a defendant’s sentence, even after a showing of relevant rehabilitation. Id. at
505 n.17.
A substantive reasonableness review entails taking into account the totality of the
circumstances. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). A sentence
within the correctly calculated Guidelines range is presumptively reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Such a presumption can only be
rebutted by a showing that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) (2012) factors. Id.2
“When rendering a sentence, the district court must make an individualized
assessment based on the facts presented.” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (internal quotation marks omitted). Accordingly, a sentencing court must
apply the relevant § 3553(a) factors to the particular facts presented and must “state in
open court” the particular reasons that support its chosen sentence. Id. Stating in open
court the particular reasons for a chosen sentence requires the district court to set forth
enough to satisfy this court that the district court has a reasoned basis for its decision and
has considered the parties’ arguments. Id. Carter, though, does not require a sentencing
court to “robotically tick through” otherwise irrelevant subsections of § 3553(a). See
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Regarding Ford-Bey’s claim that the district court provided an insufficient
explanation for his sentence, we conclude that the district court’s reasoning was
appropriate. The court noted the reduction of Ford-Bey’s Guidelines range on
resentencing, the unrelated nature of the firearm, * and Ford-Bey’s leadership role in an
extraordinarily wide-ranging drug conspiracy. The court also considered Ford-Bey’s
previous incarceration and the failure of that sentence to deter him from the instant
conduct. The court heard from Ford-Bey regarding his rehabilitation and changed
attitude and explicitly considered that evidence. We hold the court set forth sufficient
reasoning supporting the within-Guidelines sentence. See United States v. Helton, 782
*
In Ford-Bey’s initial appeal, we found the district court’s enhancement for
possession of a firearm in relation to a drug trafficking crime was clearly erroneous.
United States v. Ford-Bey, 657 F. App’x 219 (4th Cir. 2016) (No. 15-4347).
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F.3d 148, 154 (4th Cir. 2015) (“To require more explanation would unnecessarily intrude
upon the district court’s primary and unique role in the sentencing process.”).
Turning to the substantive reasonableness of Ford-Bey’s sentence, he contends
that his mitigating arguments sufficiently rebutted the presumptive reasonableness of the
within-Guidelines sentence. However, a defendant who protests his within-Guidelines
sentence on this ground must adduce “fairly powerful mitigating reasons” and persuade
this court that the district court was unreasonable in balancing the pros and cons. United
States v. Medina-Villegas, 700 F.3d 580, 584 (1st Cir. 2012). While the court might have
imposed a lower sentence given the mitigating circumstances cited by Ford-Bey, the
mere fact that the court did not consider the mitigating circumstances worthy of a greater
reduction does not render the sentence unreasonable. Because there is a range of
permissible outcomes for any given case, an appellate court must resist the temptation to
“pick and choose” among possible sentences and rather must “defer to the district court’s
judgment so long as it falls within the realm of these rationally available choices.”
United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007); see also United
States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) (observing that “district courts have
extremely broad discretion when determining the weight to be given each of the
§ 3553(a) factors”) (citation omitted); United States v. Carter, 538 F.3d 784, 790 (7th
Cir. 2008) (noting substantive reasonableness “contemplates a range, not a point”).
Accordingly, we find no abuse of discretion because the district court considered the
arguments by both parties and rationally found that a 360-month sentence was
appropriate.
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Thus, we affirm Ford-Bey’s sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED
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