United States v. Christopher Bowen Balfrey

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13229
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00391-SDM-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER BOWEN BALFREY,
a.k.a. Bo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 19, 2017)
Before HULL, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:
Christopher Bowen Balfrey appeals the 151-month sentence he received
after pleading guilty to weapons and drug-trafficking charges. After careful
review, we affirm.
I.
On February 8, 2016, Christopher Balfrey pled guilty to one count of
conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
and 846; two counts of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e); and one count of possessing a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c).
The presentence investigation report (“PSR”) determined Balfrey should be
sentenced as a career offender because of his prior Florida felony convictions for
robbery and delivery of cocaine. See United States Sentencing Guidelines
§ 4B1.1(a) (“A defendant is a career offender if . . . the defendant has at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.”). Based on his career-offender status, the PSR calculated a base offense
level of 32, which it reduced by three levels for acceptance of responsibility,
resulting in a total offense level of 29. The PSR assigned Balfrey a criminal
history category of VI, as required for all defendants subject to the career-offender
enhancement. Id. § 4B1.1(b). Based on his offense level and criminal history
category, Balfrey’s guideline range was 151 to 188 months imprisonment. In
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addition, the PSR determined Balfrey was subject to a consecutive, mandatory-
minimum sentence of 60 months for his conviction for possession of a firearm in
furtherance of a drug-trafficking crime. See 18 U.S.C. §§ 924(c)(1)(A)(i), (D)(ii)
(imposing a consecutive “term of imprisonment of not less than 5 years” for any
person convicted of possessing a firearm in furtherance of a drug-trafficking
crime).
At sentencing, the district court adopted the PSR’s calculation of Balfrey’s
guideline range. Balfrey argued for a below-guideline sentence “in the range of 10
years or less.” Balfrey said his career-offender status overstated his actual criminal
history and risk of recidivism because he was a minor when he committed both of
the prior felonies that resulted in these convictions. In response, the government
argued for a sentence of 151-months imprisonment plus the 60-month consecutive
term required under § 924(c). The government emphasized that Balfrey was not a
“low level dealer” and is “a violent person,” as evidenced by his prior conviction
for robbery. The government also mentioned Balfrey’s refusal to enter into a plea
agreement or otherwise cooperate with the government. The government said that
Balfrey’s decision not to cooperate is the reason “why . . . [he is] looking at the
guideline terms that he is.” The district court then continued the sentencing for
several weeks to allow Balfrey a chance to reconsider whether he wanted to
cooperate with the government.
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When sentencing resumed, Balfrey told the court he still did not wish to
cooperate with the government. Balfrey’s counsel stressed that Balfrey did not
want the court to think he had been insincere in reconsidering whether to
cooperate. In response to this, the district court said:
Actually, I give no consideration to any of it one way or the other.
And I don’t have any part and don’t accept any part in any of the
discussions between [the] United States and the defense or make any
speculations or any findings about who was trying to do what to
whom.
The court then proceeded with sentencing. The court “considered the [sentencing]
factors at 18 U.S.C. [§] 3553.” The court found that Balfrey’s convictions were for
“serious offenses that represent an example of a serious and persistent form of
conduct that threatens the community.” But the court also recognized that
Balfrey’s only prior convictions were for crimes he committed “as a younger
person,” and that he “had some number of adult years of improved conduct” since
committing those earlier crimes. In light of these “extenuating circumstances,” the
court sentenced Balfrey to a below-guideline sentence of 91 months, plus the 60-
month mandatory consecutive term, for a total sentence of 151-months
imprisonment.
II.
Balfrey first argues the district court erred in finding that his prior Florida
conviction for robbery, Fla Stat. § 812.13(1), is a predicate offense for the career-
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offender enhancement. As Balfrey acknowledges, he did not raise this objection
below, so our review is for plain error. See United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000) (per curiam).
This Court has already considered whether Florida robbery constitutes a
“crime of violence” for purposes of the career-offender enhancement, and we held
that it does. United Sates v. Lockley, 632 F.3d 1238, 1241–45 (11th Cir. 2011).
We are bound by Lockley. 1
In arguing that Florida robbery is not a “crime of violence,” Balfrey cites the
Supreme Court’s decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct.
2551 (2015). Johnson struck down as unconstitutionally vague the so-called
“residual clause,” which gave one definition of what a “violent felony” is under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 2563. Balfrey
appears to argue that, in light of Johnson, Florida robbery is no longer a “crime of
violence” under the identical residual clause in the Sentencing Guidelines. See
USSG § 4B1.2(a)(2) (2014). However, the Supreme Court held in Beckles v.
United States, 580 U.S. ___, 137 S. Ct. 886 (2017), that “the advisory Guidelines
are not subject to vagueness challenges under the Due Process Clause.” Id. at 890.
Because Balfrey’s career-offender enhancement was imposed under the advisory
1
We have noted that “the prior panel precedent rule does not bind us to follow” an earlier
decision “[i]f state law changes or is clarified in a way that is inconsistent with the state law
premise” of that decision. United States v. Johnson, 528 F.3d 1318, 1320 (11th Cir. 2008), rev’d
and remanded on other grounds, 559 U.S. 133, 130 S. Ct. 1265 (2010). Balfrey does not argue
that Lockley is inconsistent with intervening state law.
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guidelines, he cannot bring a vagueness challenge. See id. As a result, his Florida
robbery conviction remains a valid predicate for the career-offender enhancement
under Lockley.
III.
Next, Balfrey argues his sentence is both procedurally and substantively
unreasonable. We review the reasonableness of a sentence for an abuse of
discretion. United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010) (per
curiam).
Balfrey says his sentence was procedurally unreasonable because the district
court, in determining his sentence, took his failure to cooperate with the
government into consideration. The record shows otherwise. In discussing
Balfrey’s decision not to cooperate, the district court expressly said: “I give no
consideration to any of it one way or the other.” But, even if the district court had
considered Balfrey’s refusal to cooperate, this Court has held that “a court is
absolutely entitled to consider a defendant’s failure to cooperate at the time of
sentencing.” United States v. Malekzadeh, 855 F.2d 1492, 1498 (11th Cir. 1988).
Therefore, Balfrey’s sentence was not procedurally unreasonable.
Finally, Balfrey challenges his sentence on the ground that it was
substantively unreasonable. The district court must “impose a sentence sufficient,
but not greater than necessary, to comply with the purposes” listed in 18 U.S.C.
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§ 3553(a)(2), including the need to reflect the seriousness of the offense, deter
criminal conduct, and protect the public from the defendant. 18 U.S.C.
§ 3553(a)(2). In imposing a particular sentence, the court must also consider the
nature and circumstances of the offense, and the history and characteristics of the
defendant, among other things. See id. §§ 3553(a)(1), (3)–(7). The weight given
to any specific factor “is committed to the sound discretion of the district court.”
United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014). However, “[a]
district court abuses its discretion when it (1) fails to afford consideration to
relevant factors that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc) (quotation omitted).
Balfrey says his sentence is substantively unreasonable because the district
court failed to properly consider the fact that his prior offenses were committed
when he was a teenager and he had no criminal activity for ten years after those
offenses early in his life.2 But the record shows the district court did take these
factors into account. The court recognized that Balfrey’s only prior convictions
were for crimes he committed “as a younger person.” The court also recognized
2
It is not clear whether Balfrey also raises the district court’s alleged reliance on his
decision not to cooperate as a claim of substantive unreasonableness. To the extent he does, we
reject that argument for the same reasons set out above.
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that he had “some number of adult years of improved conduct.” It was precisely
because of these “extenuating circumstances” that the court sentenced Balfrey to a
below-guideline sentence.
Because the district court did consider these mitigating factors, Balfrey is
essentially arguing that the district court did not accord enough weight to them.
However, the weight given to any particular factor under § 3553(a) is “committed
to the sound discretion of the district court.” Dougherty, 754 F.3d at 1361.
Therefore, on this record, we cannot say the district court abused its discretion.
AFFIRMED.
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