United States v. Blake ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIELLE BLAKE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-01323)
Submitted: January 31, 2008 Decided: July 23, 2008
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas E. Vanderbloemen, GALLIVAN, WHITE & BOYD, PA, Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danielle Blake pled guilty, pursuant to a written plea
agreement, to one count of using and carrying a firearm during and
in relation to a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c)(1)(A)(iii) (West 2000 & Supp. 2007). At the
sentencing hearing, pursuant to the terms of the plea agreement,
the Government moved for an upward departure from the advisory
guidelines sentence of 120 months’ imprisonment. The district
court granted the motion and sentenced Blake to 300 months’
imprisonment. Blake timely appealed his sentence. The Government
moved to dismiss based upon a waiver of appellate rights in the
plea agreement. For the reasons that follow, we deny the
Government’s motion to dismiss and affirm Blake’s sentence.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Blick, 408 F.3d 162,
169 (4th Cir. 2005). To determine whether a waiver is knowing and
intelligent, we examine the “totality of the circumstances,
including the experience and conduct of the accused, as well as the
accused’s educational background and familiarity with the terms of
the plea agreement.” United States v. General, 278 F.3d 389, 400
(4th Cir. 2002) (internal quotation marks and citation omitted).
The question of whether a defendant validly waived his right to
appeal is an issue of law that we review de novo. United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992).
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Rule 11 specifically imposes upon a district court the
duty to inform the defendant and determine that he understands “the
terms of any plea agreement provision waiving the right to appeal
or to collaterally attack the sentence.” Fed. R. Crim. P.
11(b)(1)(N). Here, the district court failed to specifically
discuss with Blake the appeal waiver provision in his plea
agreement. The only reference to that provision occurred during
the prosecutor’s summary of the entire agreement. Although Blake
stated he had discussed the agreement with his attorney before
signing it, and his initials appear next to the waiver provision in
the written agreement, the hearing transcript does not demonstrate
the degree to which Blake understood, if at all, the importance of
the waiver of appellate rights.
Blake’s background, education, experience and conduct
before the district court, however, indicate that Blake did not
understand the significance of the waiver. The PSR noted Blake had
only an eighth grade education and no prior experience in the
criminal justice system. The probation officer noted Blake was a
poor historian, often did not understand the questions being asked,
and was confused. The report of Blake’s competency test indicated
Blake was a “low functioning person in terms of overall
intellectual ability,” although it also suggested Blake may have
been exaggerating cognitive defects in order to avoid legal
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consequence. Finally, Blake’s brief allocution before the
sentencing judge was nearly unintelligible.
In light of Blake’s demonstrated mental deficiencies,
and because the district court did not specifically question Blake
about the waiver, we find that the totality of the circumstances
indicates Blake’s appeal waiver was not knowing and voluntary.
Accordingly, we deny the Government’s motion to dismiss based upon
the waiver.
Turning to the sentencing challenge, we review Blake’s
sentencing for abuse of discretion. See Gall v. United States, 128
S. Ct. 586, 597 (2007). First, we examine the sentence for
significant procedural error. Id. Assuming the decision was
procedurally sound, we then consider the substantive reasonableness
of the sentence. Id. In doing so, we take into account the
totality of the circumstances, including the extent of any
deviation from the guidelines range, but we must also “give due
deference to the district court’s decision that the [28 U.S.C.]
§ 3553(a) factors, on a whole, justify the extent of the variance.”
Id. Even if we would have reached a different sentencing result on
our own, this fact alone is insufficient to justify reversal of the
district court. Id.
The parties agree that the district court properly
calculated the guidelines sentence of 120 months’ imprisonment.
Blake argues that the district court procedurally erred by failing
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to adequately justify a sentence two and one-half times the
guidelines range, particularly when he had no criminal history,
realized no benefit for his acceptance of responsibility, and was
recognized by the district court as being merely a “follower.”
In considering the Government’s motion for upward
departure, the district court first found that the circumstances of
the charged offense resulted in significant physical injury. Such
significant physical injury supported an increase of Blake’s
sentence above the Guidelines range. See U.S. Sentencing
Guidelines Manual (“USSG”) (2005) § 5K2.2. Notwithstanding the
fact that Blake was not the shooter, the victim’s injuries alone
may be sufficient to support Blake’s 300-month sentence under the
law of this Court. See United States v. Scheetz, 293 F.3d 175, 191
(4th Cir. 2002).
In addition, the district court found both Blake and his
co-defendant responsible for the shooting death of Ashton Coggins,
uncharged conduct that supported a further increase in Blake’s
sentence. See USSG § 5K2.21. The court considered the various
factors under 28 U.S.C. § 3553(a) (2000), noting that both
defendants’ sentences would reflect the seriousness of their
offenses, the need for adequate deterrence, just punishment, and
the need to protect the public from further crimes by these two
defendants. Finally, the court noted the defendants’ need for
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educational training and recommended that both obtain their GED
while incarcerated. We find no procedural error.
Substantively, we find that the district court did not
abuse its discretion. The Sentencing Commission has not provided
district courts with any specific guidance for determining the
extent of a departure governed by the policy statements in USSG
§ 5K2.0. See United States v. Davis, 380 F.3d 183, 194 n.12 (4th
Cir. 2004). While representing a substantial departure, Blake’s
sentence did not exceed the sentence that would result under the
Guidelines if he had been convicted of the same offense in
connection with the Coggins exchange. See 18 U.S.C.
§ 924(c)(1)(C), (D). Whether or not we may have reached a
different sentencing result on our own, any such determination is
insufficient to justify reversal of the district court. Gall, 128
S. Ct. at 597.
We therefore affirm Blake’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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