United States v. Corey L. Hooper

Case: 13-11584 Date Filed: 05/13/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11584
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cr-00347-IPJ-TMP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
COREY L. HOOPER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 13, 2014)
Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 13-11584 Date Filed: 05/13/2014 Page: 2 of 7
The government appeals Corey L. Hooper’s sentence after he was convicted
of deprivation of rights under color of law, pursuant to 18 U.S.C. § 242. The
conviction stems from an incident in 2007 in which Hooper, then a Birmingham,
Alabama, police officer, struck a handcuffed and non-resisting arrestee multiple
times in the face. The guideline range called for 70 to 87 months’ imprisonment,
but the district court varied downward to issue a sentence of 60 months’ probation.
On appeal, the government argues that Hooper’s probationary sentence was
substantively unreasonable because it did not satisfy the need for general
deterrence. While the district court concluded that Hooper would be specifically
deterred from committing future crimes, the sentencing factors listed in 18 U.S.C.
§ 3553(a) also required the court to examine whether Hooper’s sentence would
deter others. However, the court concluded it was “not going to worry about what
other police officers do.” The government also argues that the non-custodial
sentence fails to satisfy the § 3553(a)(2) purposes of reflecting the seriousness of
the crime, promoting respect for the law, and providing just punishment. Finally, it
asserts that the court failed to offer a sufficiently compelling justification for what
amounts to a major departure from 70 months’ incarceration to no prison time at
all.
We review the reasonableness of a sentence using a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41 128 S. Ct. 586, 591, 169
2
Case: 13-11584 Date Filed: 05/13/2014 Page: 3 of 7
L. Ed. 2d 445 (2007). Under this standard, the district court does not need to
impose the same sentence we would have given, but need only impose a sentence
that is within the range of reasonableness. United States v. Irey, 612 F.3d 1160,
1190-91 (11th Cir. 2010) (en banc). The party challenging the sentence has the
burden of demonstrating that the sentence is unreasonable in light of the record and
the factors outlined in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005).
In reviewing for substantive reasonableness, we examine the totality of the
circumstances and ask “whether the statutory factors in § 3553(a) support the
sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008). The § 3553(a) factors are: the nature and circumstances of the offense and
history and characteristics of the defendant, the need for the sentence to reflect the
seriousness of the offense, the need to promote respect for the law and afford
adequate deterrence, the need to protect the public, the need to provide the
defendant with training, education and medical care, the kinds of sentences
available, the Sentencing Guidelines range for the offense, the Sentencing
Commission policy statements, the need to avoid unwarranted sentencing
disparities, and the need to provide victims with restitution. 18 U.S.C.
§ 3553(a)(1)-(7). To vacate a sentence, we must firmly believe that the district
court “committed a clear error of judgment in weighing the § 3553(a) factors by
3
Case: 13-11584 Date Filed: 05/13/2014 Page: 4 of 7
arriving at a sentence that lies outside the range of reasonable sentences dictated by
the facts of the case.” Irey, 612 F.3d at 1190 (quotation omitted).
“The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court.” United States v. Clay, 483 F.3d 739,
743 (11th Cir. 2007) (quotation omitted). However, this discretion is not
unfettered. Irey, 612 F.3d at 1191. A sentence may be substantively unreasonable
when a court unjustifiably relies on any single § 3553(a) factor, selects the
sentence arbitrarily, bases the sentence on impermissible factors, or fails to
consider pertinent § 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1191-
92 (11th Cir. 2008).
Section § 3553(a)(2)(B) provides that the district court is required to
consider the need for a defendant’s sentence “to afford adequate deterrence to
criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). Promoting deterrence is distinct
from the goal of preventing recidivism, which is referenced in § 3553(a)(2)(C) as
“protect[ing] the public from further crimes of the defendant.” See United States v.
Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (holding that the sentencing court’s
conclusion that “this defendant has been effectively deterred” referred to
§ 3553(a)(2)(C), rather than the promotion of general deterrence). Moreover,
general deterrence is “one of the key purposes of sentencing.” Pugh, 515 F.3d at
1194. In our recently published decision in United States v. McQueen, 727 F.3d
4
 Case: 13-11584 Date Filed: 05/13/2014 Page: 5 of 7
1144 (11th Cir. 2013), we held that general deterrence is especially compelling in
the context of officials abusing their power. McQueen, F.3d at 1157-58.
Section § 3553(a)(2)(A) provides that the district court is required to
consider the need for the sentence “to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense.” 18
U.S.C. § 3553(a)(2)(A). Even if the court stated that it considered
§ 3553(a)(2)(A), its failure to explain how the offense’s severity factored into its
decision to issue a lower sentence can result in an unreasonable sentence. See
Pugh, 515 F.3d at 1198 (holding that although the district court recognized that
child pornography is “a serious crime,” the sentence failed to reflect that severity
or to promote respect for the law).
If the district court determines that the § 3553(a) factors justify a sentence
outside the guidelines, we must give due deference to that court’s decision. United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). However, we also must
consider the extent of the deviation and “ensure that the justification is sufficiently
compelling to support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct.
at 597. A major variance in sentencing requires a more significant justification
than a minor one. Id.; see also Irey, 612 F.3d at 1196 (holding that a downward
variance of 42% is considered major). A major variance cannot be sufficiently
justified solely on the grounds of the defendant’s characteristics and motive. See
5
Case: 13-11584 Date Filed: 05/13/2014 Page: 6 of 7
Pugh, 515 F.3d at 1182, 1187, 1200-01 (holding that a 97-month downward
variance for a child-pornography conviction was not sufficiently justified by the
defendant’s lack of a criminal history and the low risk that he would re-offend).
Here, the district court abused its discretion when it issued Hooper a 60-
month probationary sentence. First, the court expressly declined to consider the
need for Hooper’s sentence to adequately deter other police officers from using
excessive force. 18 U.S.C. § 3553(a)(2)(B). By ignoring a pertinent § 3553(a)
factor that was one of the “key purposes” of sentencing, the court issued a
substantively unreasonable sentence. McQueen, 727 F.3d at 1157-58; see also
Pugh, 515 F.3d at 1191-92, 1194. Second, the court did not give adequate
consideration to the seriousness of Hooper’s conviction under 18 U.S.C. § 242,
particularly in light of Hooper’s abuse of police power and the vulnerability of a
restrained arrestee. McQueen, 727 F.3d at 1157-58; Pugh, 515 F.3d at 1198.
Third, the court failed to cite a sufficiently significant justification for granting a
100 %, 70-month downward variance. Massey, 727 F.3d at 1159; Irey, 612 F.3d at
1196. While sentencing courts should look to a defendant’s history and
characteristics, Hooper’s clean criminal history and family ties cannot sufficiently
justify such a steep variance under the facts of this case. See 18 U.S.C.
§ 3553(a)(1); Pugh, 515 F.3d at 1200-01.
6
Case: 13-11584 Date Filed: 05/13/2014 Page: 7 of 7
For the reasons above, Hooper’s 60-month probationary sentence is
substantively unreasonable under the totality of the circumstances. Gonzalez, 550
F.3d at 1324. We therefore vacate and remand for further review and resentencing.
VACATED and REMANDED.
7