United States v. Vendai Irick ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4390
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VENDAI LAPRIEST IRICK,
Defendant - Appellant.
No. 14-4397
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RODNEY JERROLD DEVIN BYRD,
Defendant - Appellant.
No. 14-4407
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DENZEL TIMOTHY RASHEEM SHIVERS,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00339-NCT-1;
1:13-cr-00339-NCT-3; 1:13-cr-00339-NCT-2)
Submitted: March 12, 2015 Decided: April 13, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ferris R. Bond, BOND & NORMAN, Washington, D.C.; John J.
Cacheris, JC LAW CENTER, Charlotte, North Carolina, for
Appellants. Ripley Rand, United States Attorney, Kyle D.
Pousson, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Vendai Irick, Rodney Byrd, and Denzel Shivers pleaded
guilty to interference with commerce by robbery, in violation of
18 U.S.C. § 1951(a) (2012). The district court sentenced
Shivers and Irick to 136 months’ imprisonment and three years’
supervised release, and Byrd to 175 months’ imprisonment and
three years’ supervised release. On appeal, Irick contends the
district court plainly erred by failing to reduce Irick’s total
offense level for playing a mitigating role in the offense. All
of the appellants contend that the district court imposed
unreasonable sentences. We affirm.
Because Irick did not allege in the district court that he
was entitled to an offense level reduction for playing a
mitigating role in the offense, we review this issue for plain
error. United States v. Slade, 631 F.3d 185, 189-90 (4th Cir.
2011). To demonstrate plain error, Irick must show that an
error (1) occurred, (2) was plain, and (3) affected his
substantial rights. See United States v. Olano, 507 U.S. 725,
732 (1993).
The Sentencing Guidelines provide graduated offense level
reductions when a defendant plays a “mitigating role” in the
charged offense. See U.S. Sentencing Guidelines Manual § 3B1.2
(2013). If the defendant was a “minimal participant,” the court
should reduce the total offense level by four. USSG § 3B1.2(a).
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If the defendant was a “minor participant,” the court should
reduce the total offense level by two. USSG § 3B1.2(b). If the
defendant “fall[s] between” the two gradations, the court should
reduce the total offense level by three. USSG § 3B1.2(c).
This reduction applies to any defendant who is
“substantially less culpable” than his codefendants. USSG
§ 3B1.2 n.3(A). We have previously held that a district court
did not clearly err in refusing to apply the reduction to the
driver in a drug-running scheme, where the driver was aware of
the scheme and participated in prior deliveries, and the amount
involved was “hardly insubstantial.” United States v. McCrary,
887 F.2d 485, 488 (4th Cir. 1989).
After reviewing the record, we likewise conclude that the
district court did not plainly err in failing to award Irick the
mitigating role reduction. Irick scouted the jewelry store that
appellants later robbed and admitted to committing two other
robberies with his codefendants. Furthermore, Irick assisted in
robbing cash and goods worth over $400,000—“hardly [an]
insubstantial” amount.
Appellants next argue that the district court abused its
discretion by imposing unreasonable sentences. See Gall v.
United States, 552 U.S. 38, 51 (2007) (providing standard of
review). In reviewing a sentence for reasonableness, we first
ensure that the district court committed no “significant
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procedural error,” including insufficient consideration of the
18 U.S.C. § 3553(a) (2012) factors or inadequate explanation of
the sentence imposed. United States v. Lynn, 592 F.3d 572, 575
(4th Cir. 2010) (internal quotation marks omitted).
In its explanation, the district court need not
“robotically tick” through every § 3553(a) factor on the record,
particularly when its sentence is within the properly calculated
Sentencing Guidelines range. United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006). At the same time, the district court
“must make an individualized assessment based on the facts
presented.” Gall, 552 U.S. at 50. “This individualized
assessment need not be elaborate or lengthy, but it must provide
a rationale tailored to the particular case at hand and adequate
to permit meaningful appellate review.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted).
We conclude that the district court committed no such
procedural error. The court balanced the seriousness of the
offense and the need to protect the public and deter others from
such conduct, against appellants’ youth, immaturity, and drug
use. While the district court often grouped its references to
appellants, it also clearly differentiated between their
individual conduct. Moreover, this grouping was hardly
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inappropriate, given that appellants presented many of the same
considerations.
We must also examine the substantive reasonableness of the
sentences, considering the “totality of the circumstances.”
Gall, 552 U.S. at 51. The sentence imposed must be “sufficient,
but not greater than necessary,” to satisfy the purposes of
sentencing. 18 U.S.C. § 3553(a). A properly calculated,
within-Guidelines sentence is presumed reasonable on appeal, and
an appellant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
Appellants’ sentences fell within their respective
Guidelines ranges. As explained above, the district court
effectively balanced the serious, premeditated, and dangerous
nature of the offense against appellants’ youth, immaturity, and
drug use.
Contrary to Irick’s arguments on appeal, the district court
did not abuse its discretion in denying him a variance. Indeed,
he played just as significant a role in the crime as his
codefendants.
We similarly find nothing to support appellants’ assertion
that the district court improperly enhanced their sentences due
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to unproven, uncharged conduct. The court properly considered
such conduct in analyzing appellants’ history and
characteristics and fashioning a within-Guidelines sentence.
Finally, the district court’s failure to explicitly
consider the negative collateral consequences that appellants
will suffer as a result of their imprisonment does not warrant
reversal. Accordingly, we conclude that the district court
imposed reasonable sentences.
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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