United States v. Demeco Richardson , 549 F. App'x 121 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4853
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMECO LAMONT RICHARDSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:11-cr-00124-FL-1)
Argued: September 20, 2013 Decided: October 11, 2013
Before MOTZ, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Larry Constantine Economos, ECONOMOS LAW FIRM, PLLC,
Cary, North Carolina, for Appellant. Yvonne Victoria Watford-
McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, James E. Todd, Jr., Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. 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Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Demeco Lamont Richardson pled guilty without a plea
agreement to possessing crack cocaine with intent to distribute
and possessing a firearm in furtherance of a drug trafficking
crime. See 18 U.S.C. §§ 841(a)(1) and 924(c). The district court
sentenced Richardson to 151 months for the drug crime and 60
months (to run consecutively) for the firearm crime. 1 In doing
so, the court first treated Richardson as a de facto career
offender under U.S.S.G. § 4B1.3 and departed upward from an
advisory guidelines range of 33-41 months to a range of 151-188
months. After announcing the 211-month sentence based on this
upward departure, the court stated that “[s]eparately” the
factors set forth in 18 U.S.C. § 3553(a) justify the same
sentence. J.A. 52. Richardson now appeals. 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
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
1
The 60-month sentence for the drug crime is statutorily
required to run consecutively.
3
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.
In his opening appellate brief, Richardson challenges his
sentence only on one ground, arguing that the district court
erroneously treated him as a de facto career offender and
departed upward from the 33-41 month advisory range. In
response, the government contends that we should affirm the
sentence because the court properly sentenced Richardson as a de
facto career offender and, alternatively, the court’s separate
variance sentence is reasonable. 2 We need not decide whether the
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
(Continued)
4
court properly departed upward using the de facto career
offender method because we agree with the government that the
alternate variance sentence is reasonable.
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.” Applying that principle to the
facts of that case, we noted that the district court imposed the
challenged sentence using both the guidelines departure
provisions and the § 3553(a) factors, but the appellant argued
on appeal only that the departure was improper. Affirming the
sentence, we stated:
Although Evans challenges — at length — the court’s
analysis of the Guidelines departure provisions, he
offers no argument that application of the § 3553(a)
factors does not justify his sentence. 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.
sentencing factors set forth in § 3553(a). Id. Arguably,
Richardson has waived his right to challenge the variance
sentence. See United States v. Hudson, 673 F.3d 263, 268 (4th
Cir.), cert. denied, 133 S.Ct. 207 (2012) (issues not raised in
opening brief are waived).
5
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”);
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.
The record establishes that Richardson has a significant
prior criminal history, which includes eight felony drug
convictions and multiple periods of incarceration. During the
sentencing hearing, the district court expressly noted, among
other things, Richardson’s “very troubling criminal history” and
his failure to learn “from [his] own troubles with the law.”
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.
6
J.A. 42-43. 4 The court also found that Richardson was a gang
member who had “no significant work history” and that “his
actions over an extensive period of time” demonstrated that he
had “absolutely no intention of changing his ways.” J.A. 42-43.
Further, the court observed that Richardson “has been emboldened
by numerous prior periods of incarceration, and his treatment in
the state system.” J.A. 51. Explaining the alternate § 3553(a)-
based sentence, the district court stated:
[C]onsidering the factors set forth in [§] 3553, the
need to protect the public from the great harm created
by drug dealing, the need to discourage this type of
conduct, the need to promote respect for the law,
which is so obviously lacking, and the need to provide
treatment -- all of these factors which reflect
specifically on [Richardson’s] background and . . .
history and the offenses at [issue] today, justifies
and warrants the same sentence of which [the court
has] spoken -- a total term of incarceration of 211
months.
J.A. 52.
Giving due deference to the district court’s broad
sentencing decision, as we must, Gall v. United States, 552 U.S.
38, 51 (2007), we cannot say that the upward variance is
unreasonable. Thus, even if, as Richardson argues, the court
4
Although we need not determine whether the district court
properly designated Richardson as a de facto career offender
under the guidelines, it is nonetheless notable for purposes of
the upward variance that the court viewed Richardson’s criminal
record as being “consistent with . . . that of a career
offender.” J.A. 51.
7
incorrectly treated him as a de facto career offender under §
4B1.3, that error would be harmless “because the upward variance
based on the § 3553(a) factors justified the sentence imposed.”
Rivera-Santana, 668 F.3d at 104. Accordingly, we affirm the
sentence.
AFFIRMED
8