United States v. Corey Lyons ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2416
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Corey D. Lyons, *
*
Appellant. *
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Submitted: January 11, 2006
Filed: June 19, 2006
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Before BYE and COLLOTON, Circuit Judges, and BOGUE,1 District Judge.
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COLLOTON, Circuit Judge.
Corey Lyons and three accomplices robbed a Bank of America in Cape
Girardeau, Missouri, in January 2004, stealing approximately $10,300. Lyons pled
guilty to committing bank robbery while jeopardizing the lives of those in the bank
by use of a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a) and (d) (Count
I), and to possession of a firearm during a crime of violence, in violation of 18 U.S.C.
1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
§ 924(c)(1)(A)(ii) (Count II). He appeals his 180-month sentence for Count I, and we
affirm.
Lyons’s total offense level under the United States Sentencing Guidelines was
20, and his extensive criminal history placed him in criminal history category VI. The
resulting advisory guideline range for Count I was 70 to 87 months’ imprisonment.
The district court,2 cognizant of its authority under United States v. Booker, 543 U.S.
220 (2005), to vary from the advisory guidelines, sentenced Lyons to 180 months’
imprisonment on Count I. After describing Lyons’s extensive criminal history, the
court stated, “I think there is a serious danger that this defendant will commit further
crimes, and I think having him incarcerated for a longer time will be good[,] because
he can get some further education, and perhaps some self reflection that will lead him
to perhaps be rehabilitated.” (S. Tr. at 41). The court also imposed the statutory
minimum sentence of seven years’ imprisonment for Count II, to be served
consecutively with the sentence on Count I.
Lyons challenges the reasonableness of the sentence on Count I. Review for
reasonableness is akin to review for abuse of discretion, United States v. Hadash, 408
F.3d 1080, 1083 (8th Cir. 2005), and we will consider a sentence unreasonable if the
district court “fails to consider a relevant factor that should have received significant
weight, gives significant weight to an improper or irrelevant factor, or considers only
appropriate factors but nevertheless commits a clear error of judgment by arriving at
a sentence that lies outside the limited range of choice dictated by the facts of the
case.” United States v. Haack, 403 F.3d 997, 1004 (8th Cir.), cert. denied, 126 S. Ct.
276 (2005). The “relevant factors” the district court must consider are those
enumerated in 18 U.S.C. § 3553(a). United States v. May, 413 F.3d 841, 844-45 (8th
Cir.), cert. denied, 126 S. Ct. 672 (2005).
2
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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Although the 180-month sentence imposed on Count I was substantially greater
than the advisory guideline range found by the district court, we do not think it was
unreasonable under the circumstances. First, there was no procedural error. The court
considered the relevant § 3553(a) factors in sentencing Lyons, explaining “that a
higher sentence is necessary when I consider the nature and circumstances of the
offense,” see § 3553(a)(1), “the history and characteristics of the defendant,” see id.,
“the need for punishment,” see § 3553(a)(2)(A), “and a sentence that reflects the
seriousness of the offense to provide adequate deterrence[] and to protect the public
from further crimes of the defendant,” see §§ 3553(a)(2)(B), (a)(2)(C). (S. Tr. at 41).
The court was particularly concerned that the bank robbery was an especially violent
crime, saying that “Mr. Lyons is frankly lucky that there was nobody inside who
didn’t follow their instructions or otherwise did not do something that ended up with
people shooting and people being killed,” (S. Tr. at 40), and that Lyons had been
convicted for 19 separate offenses in 15 years. (S. Tr. at 39). The court ruled that
Lyons was not a career offender under the guidelines, which it found “somewhat
ironic,” (S. Tr. at 37), and decided that his criminal history and the violent nature of
the instant offense warranted the upward variance. These are appropriate factors to
consider in deciding whether to vary from the guideline range, and the court did not
neglect factors that should have been given significant weight.
We also conclude that the length of the sentence imposed was within the range
of reasonableness. The most apposite precedent is United States v. Shannon, 414 F.3d
921 (8th Cir. 2005), which held that where a defendant accumulated 31 criminal
history points, while only 13 points are necessary for placement in category VI, and
the district court identified other aggravating factors in the criminal history, it was
reasonable to vary from the advisory guideline range of six to twelve months and
impose a sentence of 58 months’ imprisonment. Id. at 922-24. We find a comparable
situation here.
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Lyons sustained 19 different criminal convictions over 15 years. The district
court’s summary of his criminal history is accurate and illustrative:
Mr. Lyons is 31 years old. Over the past 15 years, he has 19 separate
convictions. They include things like slamming his sister to the ground
and attempting to strangle her, which was a domestic battery; hitting a
police officer in the nose, which was a resisting arrest; delivery of
cocaine; obstruction of justice; battery, which involved pushing a victim
and grabbing him by the throat; several DWIs or DUIs; and then a large
number of property crimes; stealing from retail stores, stealing very
small things from retail stores like a dog collar or a six-pack of beer; and
things like stealing very large things, such as stereo speakers, cassette
tapes and a tape case, or stealing a leather jacket from a person.
(S. Tr. at 39).
Lyons scored 31 criminal history points under the guidelines, including four
points for committing the bank robbery while on probation and within two years of
his most recent release from custody. The district court aptly described his criminal
history as “a series of escalating criminal acts,” finally resulting in the “violent crime”
for which he was sentenced in this case. As in Shannon, this defendant committed one
offense right after another during 15 years of criminal activity, see United States v.
Washington, 109 F.3d 459, 462 (8th Cir. 1997), committed several violations of
probation or parole, (PSR ¶¶ 64, 68, 94); see United States v. Yahnke, 395 F.3d 823,
825-26 (8th Cir. 2005), and was treated with leniency by the state courts during his
lengthy criminal career, see United States v. Lang, 898 F.2d 1378, 1380 (8th Cir.
1990).
These considerations could have justified a traditional upward departure under
the guidelines, see USSG § 4A1.3(a), which would have made a sentence at or close
to 180 months presumptively reasonable. See Shannon, 414 F.3d at 924. And even
if a traditional departure of this magnitude would have been somewhat excessive, we
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do not believe it was unreasonable for the district court to exercise its additional
discretion under Booker to arrive at a sentence of 180 months. Id. Although we have
characterized an upward variance of this magnitude as “extraordinary,” and such an
extraordinary variance must be supported by extraordinary circumstances, the
combination of Lyons’s aggravated criminal history and the violence of the instant
offense are sufficiently extraordinary to justify the sentence imposed. Cf. United
States v. Kendall, 446 F.3d 782, 784-85 (8th Cir. 2006) (holding upward variance
unreasonable where defendant was “low in the chain” of methamphetamine
manufacturing, and criminal history included a burglary as a juvenile, several driving
offenses, and a misdemeanor drug offense).3
Lyons also contends that the district court’s decision to vary from the advisory
guideline range based on the authority announced in Booker violates the Ex Post
Facto Clauses of the Constitution. These provisions do not apply to judicial
decisions, so we interpret Lyons’ argument to invoke the Due Process Clause of the
Fifth Amendment, and the “concepts of notice, foreseeability, and in particular the
right to fair warning.” Rogers v. Tennessee, 532 U.S. 451, 456-57, 459 (2001). As
3
There is a bit of irony in Lyons’s challenge to the 180-month sentence, because
success in the appeal could well result in a longer sentence on remand. The district
court ruled that Lyons was not a career offender for purposes of USSG § 4B1.1,
because his conviction for driving while intoxicated was not a “crime of violence,” see
United States v. Walker, 393 F.3d 819 (8th Cir. 2005), but since then, we have held
that this offense is a crime of violence. United States v. Spudich, 443 F.3d 986, 987
(8th Cir. 2006) (per curiam). If the present sentence were deemed unreasonable on
this record, and if the government on remand presented evidence from acceptable
sources showing that Lyons’s conviction for drunk driving necessarily rested on the
fact that he was driving while intoxicated, see United States v. McCall, 439 F.3d 967,
974 (8th Cir. 2006) (en banc); cf. PSR ¶ 97, then Lyons would qualify as a career
offender. His advisory guideline range would be 188-235 months’ imprisonment, see
USSG § 4B1.1(b)(B); 18 U.S.C. § 2113(d), and a sentence even longer than that
imposed by the district court would be “presumptively reasonable.” United States v.
Lincoln, 413 F.3d 716, 717-18 (8th Cir.), cert. denied, 126 S. Ct. 840 (2005).
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noted, there is a substantial argument that the district court could have imposed the
same sentence prior to Booker, based on a traditional guidelines departure. See USSG
§ 4A1.3; United States v. Paulus, 419 F.3d 693, 698-99 (7th Cir. 2005). In any event,
Lyons’s due process contention is foreclosed by circuit precedent. United States v.
Counce, 445 F.3d 1016, 1019 (8th Cir. 2006) (per curiam); United States v. Wade, 435
F.3d 829, 832 (8th Cir. 2006) (per curiam).
The judgment of the district court is affirmed.
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