United States v. Stephen Blackman , 434 F. App'x 197 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5006
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEPHEN MCKINLEY BLACKMAN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:10-cr-00491-TLW-1)
Submitted: May 20, 2011 Decided: June 8, 2011
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Robert F. Daley, Jr., William E. Day, II,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen McKinley Blackman pled guilty to one count of
failure to register as a sex offender, in violation of 18 U.S.C.
§ 2250(a) (2006). On appeal, he challenges his twenty-eight-
month sentence, arguing the district court abused its discretion
in denying his motion for a downward variance and that his
sentence, in this regard, is procedurally and substantively
unreasonable. We affirm.
By written motion prior to sentencing and again at
sentencing, Blackman requested a downward variance on three
grounds. First, Blackman requested the district court vary
downward based on his policy argument that U.S. Sentencing
Guidelines Manual (USSG) § 2A3.5 (2009), as presently
constituted, allows only a two-level reduction for acceptance of
responsibility for tier I and tier II offenders whereas tier III
offenders may receive as much as a three—level reduction for
acceptance of responsibility, resulting in, according to
Blackman, an unwarranted sentencing disparity among defendants
with similar records that have been found guilty of similar
conduct. Second, Blackman argued a sentence in the Guidelines
range was greater than necessary to accomplish the goals of 18
U.S.C. § 3553(a) (2006), because he merely violated a
registration provision of a non-punitive statute. Last,
Blackman, focusing on the “characteristics of the defendant”
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factor of 18 U.S.C. § 3553(a)(1), alleged he has “ongoing
problems with substance abuse” and that “the vast majority of
the incidents listed in his presentence report are substance
abuse related as charged.”
At sentencing on September 20, 2010, Blackman made no
objections to the presentence report or to the established
advisory Guidelines range. The district court first heard
lengthy argument on Blackman’s motion for a variance based on
his policy argument pertaining to USSG § 2A3.5. The district
court ultimately denied the motion, stating:
I’m not prepared to conclude that the Guidelines
are flawed. And I am not sure that you are arguing
that they are flawed. It is just a question of the
Commission giving anybody a little more break—or an
opportunity for a reduction; is that the right way to
describe it—for a higher-tiered defendant and then,
therefor [sic], based on your position, the lesser-
tiered defendant end up with less off and the higher-
tiered defendant who starts at a higher level gets
more off.
It might be worthwhile—and, again, it is up to
the Commission—it is not up to the court—to, at least,
consider that circumstance—and maybe they did, maybe
they did, but consider than circumstance—and see if it
requires any change.
But I do not find that the Guidelines are flawed
in connection with this nor that it is such an
inequity that it would be a basis for me to vary in
this case on this basis. . . . I am not prepared to
conclude that the Commission’s policy is flawed
because of the decisions that were made, a new
[G]uideline coming in and allowing for the three
levels. But I have considered your position and I do
not conclude that it is a basis for a variance in this
case.
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Blackman again posited as his second basis for a
downward variance that “failure to register cases are different
than other criminal cases[,] because the purpose of . . . SORNA
[Sex Offender Registration and Notification Act] . . . is not to
punish people.” The court denied the motion on this argument,
responding that “[t]here is a criminal penalty that comes into
play . . . in the end, [SORNA] does provide for a criminal
punishment that has withstood Ex Post Facto arguments.” With
respect to Blackman’s reliance on his substance abuse related
offenses, the district court acknowledged that Blackman had some
substance abuse treatment problems, but concluded that the
record did not support a basis for the district court to vary.
After hearing from the parties and allowing Blackman
an opportunity to allocute, the district court analyzed the 18
U.S.C. § 3553(a) factors, with due consideration to this Court’s
pronouncement in United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009), that district courts should render an individualized
sentence in imposing sentence. The district court sentenced
Blackman towards the bottom of the Guidelines range to twenty-
eight months’ imprisonment.
On appeal, Blackman argues the district court erred in
denying his motion for a downward variance on the three
specified grounds and that the district court’s denial of his
motion rendered his sentence procedurally and substantively
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unreasonable. A sentence is reviewed for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires consideration of both
the procedural and substantive reasonableness of a sentence.
Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). A sentence imposed within the properly calculated
Guidelines range is presumed reasonable by this court. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
In determining the procedural reasonableness of a
sentence, this court considers whether the district court
properly calculated the defendant’s Guidelines range, treated
the Guidelines as advisory, considered the 18 U.S.C. § 3553(a)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51. Blackman does not dispute that the district court properly
calculated his Guidelines range under the advisory Guidelines.
However, he argues his sentence is procedurally unreasonable
because the district court treated the Guidelines as mandatory.
Specifically, he argues, when the district court denied his
motion for a downward variance based on his Guideline policy
argument, the district court improperly stated it was not up to
the court, but rather the Commission, to consider the
circumstance and see if it required any change. Blackman argues
that this statement indicates that the district court
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effectively treated the Guidelines as mandatory. Similarly,
Blackman claims the district court treated the Guidelines as
mandatory in rejecting his motion for a downward variance on the
ground that he violated the registration provision of a non-
punitive statute.
Because Blackman requested a sentence below the
Guidelines range on the above-cited grounds, his claim was
properly preserved, and we review for reasonableness under an
abuse of discretion standard, reversing “unless . . . the error
was harmless.” Lynn, 592 F.3d at 576, 578 (“By drawing
arguments from § 3553 for a sentence different than the one
ultimately imposed, an aggrieved party sufficiently alerts the
district court of its responsibility to render an individualized
explanation addressing those arguments, and thus preserves its
claim.”); cf. United States v. Hernandez, 603 F.3d 267, 270 (4th
Cir. 2010) (reviewing claim of procedural unreasonableness for
plain error because defendant did not argue for a sentence
different from the sentence that he received).
It is now well established that a district court may
consider policy objections to the Sentencing Guidelines.
Kimbrough v. United States, 552 U.S. 85, 101-07 (2007). In
Kimbrough, the Supreme Court held that a district court may
deviate from the advisory Guidelines range for crack cocaine
offenses based on its conclusion that the disparity between
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ranges for crack and powder cocaine results in a sentence
greater than necessary to achieve the sentencing goals of
§ 3553(a). Id. at 91. The Court has since reinforced the point
that “district courts are entitled to reject and vary
categorically from the . . . Guidelines based on a policy
disagreement with those Guidelines.” Spears v. United States,
555 U.S. 261, , 129 S. Ct. 840, 843-44 (2009). In Moore v.
United States, 555 U.S. 1, 1 (2008) (per curiam), the Court held
that the sentencing court committed procedural error because it
did not believe it had discretion to depart from the Guidelines
under Kimbrough, because it stated “Congress is the one who
looks at the [G]uidelines and decides whether or not they should
be put in-in force . . . . It isn’t the judges.” Id.; see also
United States v. Herder, 594 F.3d 352, 362-63 (4th Cir.)
(vacating sentence when district court “refused to consider a
variation from the Guidelines in light of the 67:1 ratio between
crack and powder cocaine at Herder’s offense level” because the
district court found that “‘Congress has decided that that’s an
appropriate ratio to establish’”), cert. denied, 130 S. Ct. 3440(2010).
While in isolation the district court’s statement that
it is up to the Commission to decide whether a change in the
Guideline is warranted supports Blackman’s contention, a review
of the district court’s entire analysis makes clear that the
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district court recognized its authority to vary from the
Guidelines range in Blackman’s case but simply declined to
exercise that authority. Specifically, the court stated: “I do
not find that the Guidelines are flawed in connection with this
nor that it is such an inequity that it would be a basis for me
to vary in this case on this basis . . . . I am not prepared to
conclude that the Commission’s policy is flawed because of the
decisions that were made . . . .”
This court has made clear that an appellate court’s
analysis should focus on what the district court “actually did,”
not on whether it used some forbidden phrase. Mendoza-Mendoza,
597 F.3d at 218-19 (instructing appellate courts should not
“nitpick” or “flyspeck” every transcript they review, or play
“Gotcha!” with district court judges). Rather, to afford the
appropriate amount of deference to district court judges, this
court must look to the “full context” of the sentencing
transcript to determine whether the district court properly
understood its rights and responsibilities. Id. We conclude
the record reflects that the district court acknowledged its
authority to vary from the Guidelines range with regard to the
Guideline policy argument, but ultimately disagreed with
Blackman’s argument, thereby denying the motion.
Blackman’s cursory argument that the district court
treated the Guidelines as mandatory with respect to his
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assertion that SORNA is not a punitive statute is without merit.
Blackman construes the district court’s words that there is a
criminal penalty and a Guideline that come into play as
indicative of the district court’s treatment of the Guidelines
as mandatory. Such a reading is unsupported. We conclude the
district court’s statement merely reflected the court’s
acknowledgement that SORNA has a criminal penalty and an
attendant Guideline provision for non-compliance with the
registration requirements. The district court’s statements
therefore did not render Blackman’s sentence procedurally
unreasonable.
Blackman also generally challenges the substantive
reasonableness of his sentence, arguing that the district court
abused its discretion in rejecting the three proffered bases for
a downward variance. To the extent Blackman suggests the
district court should have adopted his policy argument,
Kimbrough does not require appellate courts to discard “the
presumption of reasonableness for sentences based on non-
empirically-grounded Guidelines.” United States v. Mondragon-
Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct.
192 (2009); see also United States v. Talamantes, 620 F.3d 901,
901 (8th Cir. 2010) (per curiam). While “district courts
certainly may disagree with the Guidelines for policy reasons
and may adjust a sentence accordingly[,] . . . if they do not,
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[appellate courts] will not second-guess their decisions under a
more lenient standard simply because the particular Guideline is
not empirically-based.” Mondragon-Santiago, 564 F.3d at 367.
We therefore conclude the presumption of reasonableness applies
to this court’s review of Blackman’s sentence.
Blackman’s arguments on appeal fail to rebut the
presumption that his within-Guidelines sentence was reasonable.
In this case, the district court heard argument at length from
both parties on the motion for a downward variance. Ultimately,
the court explicitly rejected Blackman’s argument that the
Guideline was flawed and found the other two arguments
unpersuasive grounds to vary. We conclude Blackman’s sentence
was substantively reasonable.
Accordingly, we affirm Blackman’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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