United States v. DeWayne Blakeney , 499 F. App'x 238 ( 2012 )


Menu:
  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4545
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    DEWAYNE JEMALE BLAKENEY,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.  James C. Dever III,
    District Judge. (4:10-cr-00036-D-1)
    Argued:   October 25, 2012                 Decided:   December 13, 2012
    Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.
    Affirmed by unpublished per curiam opinion. Judge Gregory wrote
    a separate opinion concurring in the judgment.
    ARGUED:   Mary   Jude  Darrow,  Raleigh,   North  Carolina,    for
    Appellant.     Yvonne Victoria Watford-McKinney, OFFICE OF THE
    UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
    ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
    May-Parker, Assistant United States Attorney, OFFICE OF THE
    UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    On November 8, 2010, DeWayne Jemale Blakeney pleaded
    guilty to one count of manufacturing counterfeit federal reserve
    notes, in violation of 
    18 U.S.C. § 471
    .                          Blakeney now appeals
    his   sentence         of    120   months     imprisonment          arguing    that     it   is
    unreasonable.           For the following reasons, we affirm the district
    court’s judgment.
    I.
    On May 6, 2009, Blakeney passed counterfeit currency
    at a Subway restaurant in Vanceboro, North Carolina, and was
    arrested the next day.               On May 20, 2009, Nicki Nolder and Ashley
    Duzan passed counterfeit bills at a Walmart in Washington, North
    Carolina, and were also arrested.                     Further investigation again
    led     to   Blakeney,         who    admitted      producing         about    $30,000       in
    counterfeit       currency         together    with      Noah    Campbell       and    Thomas
    King.        Blakeney        was     cooperative      and     admitted        his    criminal
    conduct.          In    a    two-count      indictment        filed     in     the    Eastern
    District of North Carolina on May 5, 2010, Blakeney was charged
    with counterfeiting and conspiracy to counterfeit.                             On November
    8, 2010, he pled guilty to counterfeiting in violation of 
    18 U.S.C. § 471
    .
    In        the   presentence       report,        the     probation       officer
    recommended       a     base   offense      level   of    9     under   U.S.        Sentencing
    2
    Guidelines (“USSG”) § 2B5.1(a), with a 4-level increase under
    subsection (b)(1)(B) for an offense involving $10,000-$30,000,
    and    a       further      increase         to     offense        level      15   because         Blakeney
    possessed            counterfeiting               devices          or        materials.             See     §
    2B5.1(b)(2)(A), (b)(3).                      With a 2-level role adjustment under
    USSG       §    3B1.1(c)         and    a    3-level         reduction          for    acceptance         of
    responsibility,              USSG      §     3E1.1,         the    total       recommended          offense
    level was 14.               Blakeney had 15 criminal history points, which
    placed         him    in    category          VI.           As    a     result,    his    recommended
    advisory         Guidelines            range      was       37-46       months.        The     probation
    officer         also      suggested          that     the        district       court     consider        an
    upward departure pursuant to USSG § 4A1.3 because category VI
    was inadequate to account for Blakeney’s prior criminal record,
    including 28 prior convictions, 16 of which were unscored.
    Blakeney filed objections challenging the Guidelines
    computation, in which he mentioned as a “factual” objection that
    10    of       the   50     or    so    arrests         listed          in    paragraph       42    of    the
    presentence report resulted from a failed relationship.                                                   The
    United         States      moved       for     an    upward           departure       under     §   4A1.3,
    pointing         out       that    Blakeney,          who         was    38    years     old,       had    28
    criminal convictions between 1992 and 2009, most of which were
    for relatively minor crimes such as larceny, drug possession,
    trespassing,              communicating             threats,            and     driving        offenses.
    However, Blakeney had one prior federal conviction for a crack
    3
    conspiracy     and,      after    he       served          his   federal     sentence,   he
    violated his supervised release and, therefore, his supervised
    release was revoked.           The United States argued that category VI
    was an inadequate representation of Blakeney’s criminal history,
    and that Blakeney was very likely to commit future crimes, thus
    making an upward departure appropriate.                          Blakeney in turn filed
    a     sentencing    memorandum        in    which          he    requested    a    downward
    departure to a sentence of 33 months, based on his concern that
    North    Carolina     had     given    him          less    credit   than     he   deserved
    against his prior state sentences for his time in detention on
    state charges.
    When Blakeney was sentenced in May 2011, the district
    court overruled his objections to the presentence report.                                The
    United States asked for an upward departure to a sentence of 60
    months.     Defense counsel asked for a sentence at the top of the
    Guidelines range.         The district court departed above category VI
    by increasing the offense level from 14 to 26, which produced a
    new    Guidelines     range      of   120-150         months.        In    doing   so,   the
    district court stated that it was not required to discuss each
    offense    level    it      rejected       in       the     course   of    selecting     the
    appropriate offense level, citing United States v. Dalton, 
    477 F.3d 195
    , 199 (4th Cir. 2007).
    In support of the offense level increase, the district
    court observed that but for the fact that some of Blakeney’s
    4
    sentences were too old to be counted, he would have had 33
    criminal history points, and that his 2004 federal sentence had
    been reduced from 140 months to 60 months -- after which he
    committed still more offenses.
    After      considering    the   
    18 U.S.C. § 3553
    (a)    (2006)
    factors    and   the    advisory   sentencing     guidelines,     the     district
    court imposed a sentence of 120 months.              The court also ordered
    Blakeney    to   pay    restitution    in   the   amount   of    $1,330     to   11
    businesses where he had passed counterfeit currency.                    The court
    noted that it had considered defense counsel’s arguments for a
    lower sentence, including her assurances that Blakeney was ready
    to change his life and the fact that none of his co-defendants
    were   prosecuted      in   federal   court.      Following     the   sentencing
    hearing, the court set out its findings and reasons for the
    upward departure in a written sentencing order.                   The district
    court explained:
    Blakeney stands before the court at 38 years of age
    with   a   long,   profound,  and   disturbing   criminal
    history. Blakeney is a recidivist’s recidivist. . . .
    Blakeney’s conduct reflects no respect for the law.
    Indeed, instead of rejecting a criminal lifestyle
    following     his    first   federal    conviction    and
    incarceration,    Blakeney   violated    his   supervised
    release conditions by engaging in new felonious
    criminal conduct.      Even after a revocation of his
    supervised    release   and  additional    incarceration,
    Blakeney returned to his criminal behavior by again
    possessing controlled substances and committing the
    instant offence. . . .       Both specific and general
    deterrence are critical in this case, particularly
    given Blakeney’s serious offense behavior, extensive
    5
    criminal record,    lack of respect for the law, poor
    performance while    on probation or under supervision,
    and near certain     likelihood of recidivism.  Society
    has long needed     protection from Blakeney and today
    will receive it.
    United States v. Blakeney, No. 4:10-CR-36-D, 
    2011 WL 2118077
    , *5
    (E.D.N.C. May 27, 2011). 1      Blakeney now appeals his sentence,
    arguing that it was unreasonable and an abuse of discretion by
    the district court.
    II.
    We review for reasonableness a sentence imposed by a
    district court, applying an abuse of discretion standard.           See
    Gall v. United States, 
    552 U.S. 38
    , 51 (2007).         In undertaking
    such a review, “we must first 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
    [18 U.S.C.] § 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.”    United States v. Diosdado–Star, 
    630 F.3d 359
    , 363 (4th Cir. 2011) (internal quotation marks omitted).
    1
    The district court’s written sentencing order is found at
    J.A. 139-161.    Citations to the “J.A.” refer to the Joint
    Appendix filed by the parties in this appeal.
    6
    Absent    a   significant          procedural     error,   our    next    step     is    to
    assess the substantive reasonableness of the sentence imposed.
    See 
    id.
           In either event, a “deferential abuse-of-discretion
    standard”      applies       to     “any     sentence,     whether       inside,     just
    outside, or significantly outside the Guidelines range.”                           United
    States v. Savillon–Matute, 
    636 F.3d 119
    , 122 (4th Cir. 2011)
    (internal quotation marks omitted).                     The district court “has
    flexibility in fashioning a sentence outside of the Guidelines
    range,” and need only “set forth enough to satisfy the appellate
    court that it has considered the parties’ arguments and has a
    reasoned basis” for its decision.                     United States v. Diosdado-
    Star, 
    630 F.3d 359
    , 364 (4th Cir. 2011) (citing Rita v. United
    States, 
    551 U.S. 338
    , 356 (2007)).                      As the Supreme Court has
    cautioned, “[t]he fact that the appellate court might reasonably
    have   concluded      that     a    different     sentence      was   appropriate        is
    insufficient to justify reversal of the district court.”                           Gall,
    
    552 U.S. at 51
    .
    Blakeney    appears       to    argue     that    the   district      court
    erred when it departed upward from the advisory Guidelines range
    and because the extent of the departure was unreasonable.                                 A
    district court may depart upward based upon the inadequacy of
    the    defendant’s       criminal          history    if   “reliable       information
    indicates      that      the       defendant’s       criminal     history     category
    substantially         under-represents            the      seriousness       of         the
    7
    defendant’s           criminal      history         or        the     likelihood         that   the
    defendant will commit other crimes.”                          USSG § 4A1.3(a)(1).
    Blakeney        contends        that        in    deciding       to    depart,     the
    district court failed to give due regard to several factors in
    reaching        the    departure          decision,           including      the        non-violent
    nature     of    his     offense,         the   alleged             disparity      in    treatment
    between himself and his coconspirators, his cooperation with the
    government, his record of minor offenses, and the misdemeanor-
    character       of    his    recidivism.            To    the       contrary,      the     district
    court properly considered each of these factors and rejected
    them.     The district court found Blakeney repeatedly committed
    the serious counterfeiting offense, thereby victimizing multiple
    establishments.               The     district           court        also        observed      that
    Blakeney’s criminal record was “extraordinary,” and that he was
    a “recidivist’s recidivist” who “repeatedly rejected living a
    crime-free lifestyle.”               (J.A.-I 114-15).                These observations are
    readily supported by appellant’s 16 unscored prior convictions.
    A    sentencing         court       may     consider           unscored       convictions        in
    determining whether an upward departure is warranted. See United
    States v. Myers, 
    589 F.3d 117
    , 126 (4th Cir. 2009).
    The district court also found Blakeney had received
    lenient sentences on many prior occasions, “[i]ncluding a lack
    of      punishment          for     repeated         violations              of     probationary
    sentences.”           (J.A.-I 94).           The district court further stated
    8
    that,      even    were    it     not    to    consider        the     seven      misdemeanor
    convictions        and    10     arrests      that     stemmed        from      his    romantic
    relationship,          Blakeney      would      “still         would      have     amassed      a
    staggering        22   convictions       and    40     arrests       in    17    years    as    an
    adult,” including over six years he spent incarcerated.                                  (J.A.-I
    95).       The court explained that it was only addressing Blakeney’s
    arrests to respond to his objections to the Presentence Report.
    The    district        court     correctly          rejected    appellant’s           claim     of
    disparate treatment from his accomplices.                           See United States v.
    Withers,      
    100 F.3d 1142
    ,    1149       (4th     Cir.     1996).          Moreover,
    Blakeney’s        claim    that    the    district         court    did    not    factor       his
    cooperation into its decision to depart is belied by the record. 2
    The district court stated, “I have considered your counsel’s
    argument      about       your    cooperation          and     I've       taken    that       into
    account.       Just punishment includes taking that into account and
    I have.”          (J.A. 117).       In view of the foregoing, the district
    court’s      decision      to    depart       upward    was     well-supported           by    the
    record.
    After       properly       calculating         the      advisory        guideline
    range and giving the parties an opportunity to argue for an
    2
    Of note, Blakeney received a three point downward
    adjustment to his Guidelines calculation pursuant to USSG
    § 3E1.1: two points for acceptance of responsibility and one
    point for assisting authorities in the investigation and
    prosecution of his own misconduct.
    9
    appropriate sentence, a “district judge should then consider all
    of the § 3553(a) factors to determine whether they support the
    sentence requested by a party.”              Gall, 
    552 U.S. at 49-50
    .             “If
    he decides that an outside-Guidelines sentence is warranted, he
    must consider the extent of the deviation and ensure that the
    justification is sufficiently compelling to support the degree
    of the [departure].”           
    Id. at 50
    .          When reviewing an upward
    departure,    the    court    considers      “whether     the    sentencing     court
    acted reasonably both with respect to its decision to impose
    such a sentence and with respect to the extent of the divergence
    from    the   sentencing      range.”        United     States     v.    Hernandez-
    Villanueva,    
    473 F.3d 118
    ,   123   (4th    Cir.      2007).      “[A]   major
    departure     should     be     supported         by    a       more    significant
    justification than a minor one.”              Gall, 
    552 U.S. at 50
    .             “If a
    court provides an inadequate statement of reasons or relies on
    improper factors in imposing a sentence outside the properly
    calculated advisory sentencing range, the sentence will be found
    unreasonable and vacated.”            Hernandez-Villanueva, 
    473 F.3d at 123
    .    Whether a departure is upward or downward, “[t]he farther
    the    [sentencing]    court    diverges      from     the    advisory    guideline
    range,” the more a reviewing court must “carefully scrutinize
    the reasoning offered by the district court in support of the
    sentence.”     United States v. Hampton, 
    441 F.3d 284
    , 288 (4th
    Cir. 2006).
    10
    Here,       the    district       court      determined       the     applicable
    sentencing range was 37 to 46 months, based on offense level 14
    and criminal history category VI.                           It then concluded that an
    upward departure to offense level 26 “adequately reflects the
    nature, number, and seriousness of Blakeney’s prior convictions
    and the likelihood of Blakeney committing other serious crimes.”
    (J.A.-I 147).          Coupling criminal history category VI and offense
    level     26    yields       a    sentencing          range    of    120     to    150     months
    imprisonment.          Blakeney was ultimately sentenced to 120 months,
    reflecting an upward departure of roughly 260%. 3
    Explaining its rationale for the upward departure, the
    district       court    articulated         the       following     facts:        (1)    Blakeney
    “has a deeply troubling history of relentless criminal conduct”
    in which he committed crimes for most of his adult life; (2) his
    criminal       history       includes       over       29     convictions;         (3)    he    was
    convicted       twice       of        larceny    and     seven      times     of    controlled
    substance offenses, including felonies; (4) “but for the time
    period     limitation            in    [USSG     §]4A1.2(e)         and     the    four     point
    limitation       in    [USSG]          section    4A1.1(c),”        appellant’s          criminal
    history points would have totaled “an utterly staggering” 33
    points;        (5)    on     many       occasions,          Blakeney      received        lenient
    3
    The statute provides for                        a     20-year      maximum       term    of
    imprisonment. 
    18 U.S.C. § 471
    .
    11
    sentences,          “[i]ncluding        a    lack        of     punishment      for        repeated
    violations of probationary sentences;” (6) he “squandered the
    opportunity”         afforded      to   him        when    his    federal    sentence         on   a
    crack     conspiracy            conviction         was        reduced    from    140        months
    imprisonment to 60 months imprisonment; (7) he pleaded guilty to
    seven charges that stemmed from his relationship with a former
    girlfriend, and that on one of those charges Blakeney resisted a
    law enforcement officer; and, (8) even if the district court
    ignored    the       seven       misdemeanor           convictions,       appellant         “still
    would have amassed a staggering 22 convictions and 40 arrests in
    17    years      as        an    adult,      over         six    of     which    were        spent
    incarcerated.”         (J.A.-I 94-95).
    In addition, the district court considered the fact
    that Blakeney, “in light of the entire record,” was a recidivist
    for     whom    there       was    “a       near       certain     likelihood         of    future
    recidivism.” (J.A.-I 95).                    The district court found specific
    deterrence of appellant was “critical in this case” because of
    his “extraordinary criminal record,” lack of respect for the
    law, and the certainty of recidivism.                          (J.A.-I 116).
    Where       an     upward      departure          from    criminal          history
    category       VI     is    warranted,        a        sentencing       court    must       depart
    incrementally, explaining the reasons for its departure.                                       See
    U.S.S.G. § 4A1.3(a)(4)(B); United States v. Dalton, 
    477 F.3d 195
    , 199 (4th Cir. 2007).                   Even so, “Section 4A1.3’s mandate to
    12
    depart incrementally does not, of course, require a sentencing
    judge to move only one level, or to explain its rejection of
    each and every intervening level”.                     
    Id.
         Similarly, a sentencing
    court    need        not    “incant       the    specific      language       used    in    the
    guidelines, or go through a ritualistic exercise in which it
    mechanically discusses each criminal history category or offense
    level it rejects en route to the category or offense level that
    it    selects.”            
    Id.
         (internal       quotation        marks    and   citations
    omitted).       It is enough that the district court employed a well-
    reasoned      process       or,     stated      otherwise,      to    have    “extrapolated
    from    the     structure          and    methodology          of    the     Guidelines      in
    calibrating its upward departures.”                        United States v. Rivera–
    Santana, 
    668 F.3d 95
    , 104 (4th Cir. 2012).
    In this case, the district court’s determination that
    an upward departure to 120 months imprisonment was compelled by
    Blakeney’s       criminal         history    and     the   §   3553     factors      is    well-
    supported       by    the       record.      The     district       court    considered     the
    defendant’s arguments and rejected them.                            Its explanations for
    the sentence it imposed were sufficient to justify the extent of
    the    departure,          as     described      above.        See     United      States     v.
    Whorley, 
    550 F.3d 326
    , 339-42 (4th Cir. 2008) (upward departure
    33%     above        advisory       guidelines         range        amply     supported      by
    defendant’s almost continuous pursuit of criminal conduct and
    its increasing risk to the public); United States v. Myers, 589
    
    13 F.3d 117
    ,   126    (4th    Cir.    2010)       (upward    departure       based    on
    defendant’s       criminal       history,     including        unscored    convictions,
    and recidivism was reasonable); United States v. Evans, 
    526 F.3d 155
    ,       158,   163-64,       166    (4th    Cir.     2008)     (upward       departure
    reflecting more than a 300% deviation from advisory guidelines
    range      supported     by     defendant’s        extensive    criminal       history   of
    recidivism,        lenient       punishments,         and      substantial       harm    to
    victims).
    Even     had   the     sentencing      court    failed     to   utilize    a
    proper analysis for the upward departure, any such error would
    be harmless because the upward variance based on the § 3553(a)
    factors justified the sentence imposed.                        See United States v.
    Evans, 
    526 F.3d 155
    , 165 (4th Cir. 2008). 4                         See also Rivera–
    Santana, 668 F.3d at 104; United States v. Grubbs, 
    585 F.3d 793
    ,
    804 (4th Cir. 2009) (relying on district court’s discussion of
    § 3553(a) factors to affirm sentence as reasonable variance).
    The district court expressly noted that it would have
    “impose[d] the same sentence as a variance sentence” for the
    reasons explained above, as well as for those noted during the
    4
    As this Court recently observed, “the practical effects of
    applying either a departure or a variance are the same.”
    Diosdado-Star, 
    630 F.3d at 365
    .     See also Evans, 
    526 F.3d at
    164–65.   “[T]he method of deviation from the Guidelines range—
    whether by a departure or by varying—is irrelevant so long as at
    least one rationale is justified and reasonable.”       Diosdado-
    Star, 
    630 F.3d at
    365
    14
    sentencing hearing concerning section 3553(a).                    See Grubbs, 
    585 F.3d at 804
     (concluding that variance sentence “is procedurally
    reasonable [where] the district court adequately explain[s] its
    sentence    on    alternative     grounds”       by   reference     to    §   3553(a)
    factors).    Our review of the district court’s application of the
    § 3553(a) factors to Blakeney’s circumstances persuades us that
    the variant sentence imposed upon him was not unreasonable.                        See
    Grubbs, 
    585 F.3d at
    804–05; Gall, 
    552 U.S. at 51
     (in reviewing a
    variance for reasonableness, an appellate court “must give due
    deference to the district court’s decision that the § 3553(a)
    factors,    on    a    whole,   justify    the    extent     of   the    variance”);
    United States v. Pauley, 
    511 F.3d 468
    , 474 (4th Cir. 2007);
    Evans, 
    526 F.3d at 160
    .
    III.
    For       the   foregoing     reasons,     the    judgment        of   the
    district court is
    AFFIRMED.
    15
    GREGORY, Circuit Judge, concurring in the judgment:
    I concur in the result reached by the majority, as it
    is the outcome militated by our precedent.               I write separately,
    however, to lament on how formalistic and hollow our review of
    district court sentencing has become.              While I recognize that
    the district court remains in the best position “‘to decide the
    issue in question,’” Koon v. United States, 
    518 U.S. 81
    , 98–99
    (1996)   (quoting   Pierce     v.    Underwood,    
    487 U.S. 552
    ,    559-560
    (1988)),   this   discretion    is    not   without   limits,    and     must    be
    curbed   to   achieve   the    time-honored       objectives     of    fair     and
    consistent sentencing.         See United States v. Booker, 
    543 U.S. 220
    , 263–264 (2005) (noting that, despite tension with the need
    to address individual circumstances, substantive review aims to
    “avoid     excessive    sentencing       disparities”      and        “iron     out
    sentencing differences”).
    As I cautioned in United States v. Evans, 
    526 F.3d 155
    , 167 (4th Cir. 2008) (Gregory, J., concurring), “the words
    ‘abuse of discretion’ cannot be a legal incantation invoked by
    appellate courts to dispel meaningful substantive review of a
    district court’s sentence.”          Yet, as recited by the majority, to
    depart from the guidelines, district court judges “need only
    ‘set forth enough to satisfy the appellate court that it has
    considered the parties’ arguments and has a reasoned basis’ for
    its decision.”      Ante at 7 (citing United States v. Diosdado-
    16
    Star,   
    630 F.3d 359
    ,    364   (4th     Cir.   2011))       (emphasis   added).
    Thus, district court judges can render our review moot by simply
    providing     a    formulaic      recitation      of     the   
    18 U.S.C. § 3553
    (a)
    factors, as well as reasons for their departure -- even if, for
    good reason, we explicitly disagree with them.                        With that said,
    I agree that Blakeney’s remarkable criminal history justifies
    the district court judge’s decision to depart in the instant
    case;   however,         such    an    extensive       departure      from    both   the
    sentencing guidelines and the government’s recommendation should
    not go unobserved.
    In   the    case    at   hand,     the   district       court    sentenced
    Blakeney to ten years’ imprisonment -- despite the Government’s
    request for only five years (which was already fourteen months
    in excess of the sentencing range’s maximum).                           Arguably, the
    district    court’s       reasoning      could    be     extended     to   justify    any
    sentence up to the statutory maximum of twenty years.                                Such
    uncertainty flies in the face of avoiding sentencing disparities
    and the general proposition of fairness.                       As candidly indicated
    by   Blakeney’s          counsel       during     oral     argument,         uncertainty
    undermines an attorney’s role as advocate, as it encumbers the
    ability to adequately prepare clients for sentencing, putting
    the attorney at risk of claims for ineffective assistance of
    counsel.
    17
    Overall, we cannot lose sight that appellate review of
    sentencing is becoming “a mere formality, used by busy appellate
    judges only to ensure that busy district judges say all the
    right things when they explain how they have exercised” their
    discretion.   Booker, 543 U.S. at 313 (Scalia, J., dissenting).
    Going   forward,   district   courts   must   be   wary   of   departure,
    ensuring that non-guideline sentences are “sufficient, but not
    greater than necessary” to satisfy the purposes of § 3553(a)(2).
    In the same vein, our review must be given teeth to ensure that
    the discretion of district court judges –- which is not absolute
    –- remains subject to meaningful appellate review.
    18