United States v. Rodney Burrell ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4680
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RODNEY BURRELL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:10-cr-00056-D-1)
Argued: September 20, 2013 Decided: October 17, 2013
Before MOTZ, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Motz and Judge Thacker joined.
ARGUED: Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant. Joshua L. Rogers,
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Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Rodney Burrell pled guilty without a plea agreement to
possession with intent to sell 5 grams or more of cocaine base
and aiding and abetting another in the same, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 1 The district court
sentenced Burrell to 210 months imprisonment. The court upwardly
departed from a guidelines range of 46 to 57 months to a range
of 168 to 210 months under § 4A1.3(a)(1), on the ground that
Burrell’s criminal history category “woefully fail[ed] to
capture the appropriate criminal history category for
[Burrell].” J.A. 97. In addition, the court stated that even if
the upward departure was erroneous, it would impose the same
sentence as a variance under the factors set forth in 18 U.S.C.
§ 3553(a). J.A. 125. Burrell now appeals his sentence. For the
reasons set forth below, we affirm.
“Federal sentencing law requires the district judge in
every case to impose ‘a sentence sufficient, but not greater
than necessary, to comply with’ the purposes of federal
1
The district court originally sentenced Burrell as a
career offender, sentencing him to 300 months imprisonment and 8
years supervised release. However, Burrell appealed the original
sentence on the ground that one of his prior crimes, the North
Carolina marijuana conviction, could not serve as a predicate
for the career offender enhancement. On appeal, we affirmed
Burrell's conviction, vacated his sentence, and remanded for
resentencing in light of United States v. Simmons, 649 F.3d 237(4th Cir. 2011) (en banc).
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sentencing, in light of the Guidelines and other § 3553(a)
factors.” Freeman v. United States, 131 S. Ct. 2685, 2692 (2011)
(quoting 18 U.S.C. § 3553(a)). Under the current sentencing
regime, “district courts may impose sentences within statutory
limits based on appropriate consideration of all of the factors
listed in § 3553(a), subject to appellate review for
‘reasonableness.’” Pepper v. United States, 131 S. Ct. 1229,
1241 (2011). “Reasonableness review has procedural and
substantive components.” United States v. Mendoza–Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). “Procedural reasonableness
evaluates the method used to determine a defendant’s sentence. .
. . Substantive reasonableness examines the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” Id.
Burrell challenges his sentence on two grounds: (1) the
district court procedurally erred in upwardly departing because
his criminal history category did not underrepresent the
seriousness of his criminal history, and the court failed to
adequately explain incrementally why it chose the criminal
history category and offense level that it did; and (2) the
sentence is substantively unreasonable. The government argues
that we should affirm the sentence because the upward departure
3
is proper under the guidelines and, alternatively, the variance
sentence is reasonable. 2
In United States v. Evans, 526 F.3d 155, 165 (4th Cir.
2008) (emphasis in original), we explained that “[w]hen . . . a
district court offers two or more independent rationales for its
[sentencing] deviation, an appellate court cannot hold the
sentence unreasonable if the appellate court finds fault with
just one of these rationales.” Affirming the sentence, we
stated:
As explained above, the record provides abundant
support for the district court’s conclusion that the §
3553(a) factors support the sentence. Accordingly,
even assuming the district court erred in applying the
Guideline[s] departure provisions, Evans’ sentence,
which is well-justified by § 3553(a) factors, is
reasonable.
Id.; see also Rivera-Santana, 668 F.3d at 104 (in affirming the
sentence, we held that even if the district court erroneously
departed upward from the advisory guideline range, the asserted
departure error was harmless “because the upward variance based
on the § 3553(a) factors justified the sentence imposed”);
2
“The terms ‘variance’ and ‘departure’ describe two
distinct sentencing options available to a sentencing court.”
United States v. Rivera-Santana, 668 F.3d 95, 100 n.6 (4th
Cir.), cert. denied, 133 S. Ct. 274 (2012). A departure sentence
is imposed under the framework set out in the sentencing
guidelines, but a variance sentence is considered to be “a non-
Guidelines sentence” that is nevertheless justified under the
sentencing factors set forth in § 3553(a). Id.
4
United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009)
(holding that even if the district court erred in its departure
analysis, “the resulting sentence is procedurally reasonable
because the district court adequately explained its sentence on
alternative grounds supporting a variance sentence, by reference
to the . . . § 3553(a) factors”). 3 The same reasoning applies
here. We do not need to address whether the court properly
departed under § 4A1.3(a)(1) because it explicitly stated it
would apply the same sentence as an alternative variance
sentence considering the § 3553(a) factors, J.A. 125, and the
variance sentence is reasonable.
Burrell has an extensive criminal history, which the
district court discussed at great length when considering the §
3553(a) factors. The court noted that Burrell’s criminal past
includes, among other things, a voluntary manslaughter
conviction, gang activity, an “abysmal prison record” with 13
infractions, and a conviction for possession with intent to sell
and deliver marijuana. J.A. 88–92. The court described Burrell
3
See also United States v. Hargrove, 701 F.3d 156 (4th Cir.
2012), cert. denied, 133 S. Ct. 2403 (2013); United States v.
Savillon-Matute, 636 F.3d 119 (4th Cir.), cert. denied, 132 S.
Ct. 454 (2011). In both cases, we applied the “assumed error
harmlessness inquiry” and affirmed sentences without considering
the merits of the claimed procedural sentencing errors because
the record established that the district courts would have
reached the same result, which was reasonable, regardless of the
errors.
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as having “an extraordinary level of recidivism, a commitment to
recidivism, a commitment to being a drug dealer, a commitment
that is not good for him or society or anyone.” J.A. 92. The
court stated “there is a tremendous need to protect the public”
and for individual incapacitation here because “if Mr. Burrell
were released any time remotely soon and he were back out . . .
he would get right back to it.” J.A. 122. The court also
discussed the “need to promote respect for the law,” the need
for “just punishment,” and the need for deterrence, noting: “I
think a person who repeatedly gets chances and leniency and
opportunities and rejects them is saying to society and to the
legal system that they don’t have any respect for it.” J.A. 122.
The court also considered Burrell’s recently improved behavior
while incarcerated but was not convinced that this alone wiped
away the rest of his extensive criminal past. J.A. 104–05; see
Pepper v. United States, 131 S. Ct. 1229, 1241–42 (2011) (“[W]e
think it clear 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 . . . . A categorical
bar on the consideration of postsentencing rehabilitation
evidence would directly contravene Congress' expressed intent in
§ 3661.”).
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The district court has broad discretion in sentencing
decisions, see Gall v. United States, 552 U.S. 38, 51 (2007),
and based on the court’s careful consideration of the § 3553(a)
factors, we cannot say that the alternative variance sentence is
unreasonable. Therefore, even if the court was incorrect in
upwardly departing under § 4A1.3(a)(1), that error would be
harmless because the variance sentence based on the § 3553(a)
factors is reasonable and thus “justifie[s] the sentence
imposed.” Rivera-Santana, 668 F.3d at 104. We therefore affirm
the sentence.
AFFIRMED
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