United States v. Adrian Tennison

Case: 12-11363 Date Filed: 11/05/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11363
Non-Argument Calendar
________________________
D.C. Docket No. 5:11-cr-00054-MTT-CHW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
ADRIAN TENNISON,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 5, 2012)
Before HULL, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Case: 12-11363 Date Filed: 11/05/2012 Page: 2 of 6
Adrian Tennison appeals the 48-month sentence imposed upon him by the
district court after he pleaded guilty to the unlawful production of identification
documents, in violation of 18 U.S.C. § 1028(a)(1). Although the Federal
Sentencing Guidelines range was 24 to 30 months’ imprisonment, the sentencing
judge imposed an upward departure and an upward variance to arrive at the 48-
month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a)(1). On appeal, Tennison argues that the district court’s upward variance
was substantively unreasonable. After a thorough review of the record and briefs,
we affirm.
I. Background
On November 2, 2011, Tennison pleaded guilty to one count of unlawful
production of an identification document, in violation of 18 U.S.C. § 1028(a)(1).
The maximum statutory penalty for the offense is 15 years’ imprisonment. A
United States Probation Officer prepared Tennison’s presentence investigation
report (PSR) and calculated the Guidelines range to be between 24 and 30 months.
Although the sentencing judge adopted the PSR, he stated: “[T]here are grounds
for an upward departure, a greater sentence than that called for by the Sentencing
Guidelines.” After discussing Tennison’s lengthy criminal history and his
manipulation of his co-defendants, the judge imposed a 48-month sentence—18 to
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24 months above the Guidelines range—based on: (1) the inadequacy of the PSR’s
criminal history category; and (2) 18 U.S.C. § 3553(a)’s upward-variance factors.1
During the sentencing hearing, the Government suggested to the court that it
had imposed both an upward departure and an upward variance because of its
consideration of the § 3553(a) factors. The court responded: “Well, I think that’s
correct as a technical matter.” Following the hearing, in its Statement of Reasons
the court also pointed to U.S.S.G. § 4A1.3—the inadequacy of Tennison’s criminal
history category—as the reason for the upward departure. Tennison now appeals
the substantive reasonability of the sentencing judge’s upward variance. 2
II. Analysis
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
1
The § 3553(a) factors are: (1) the nature and circumstances of the offense and history and
characteristics of the defendant; (2) the need for the sentence to reflect the seriousness of the
offense; (3) the need to promote respect for the law and afford adequate deterrence; (4) the need
to protect the public; (5) the need to provide the defendant with education and vocational training
and medical care; (6) the kinds of sentences available; (7) the Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1)-(7).
2
Tennison does not challenge the district court’s imposition of an upward departure; therefore,
he has abandoned that issue. See United States v. Scott, 426 F.3d 1324, 1329 (holding that the
defendant’s failure to challenge the district court’s refusal for a downward departure resulted in
abandonment of that issue). Even if the district court’s upward departure was improper, one of
our sister circuits has held that an improper upward departure may be salvaged by a simultaneous
upward variance. See United States v. Timberlake, 679 F.3d 1008, 1011–12 (8th Cir. 2012)
(“We have held that any procedural error in granting an upward departure is harmless when the
district court makes it clear that the sentence is also based on an upward variance under the
section 3553(a) factors.”). Because Tennison abandoned any argument on the upward departure,
we need not decide this issue today.
3
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(2007). A sentence must be both procedurally and substantively reasonable. See
id. at 51, 128 S. Ct. at 597 (“Assuming that the district court’s sentencing decision
is procedurally sound, the appellate court should then consider the substantive
reasonableness of the sentence . . . .”); United States v. Ellisor, 522 F.3d 1255,
1273 (11th Cir. 2008). We will only vacate a sentence for substantive
unreasonableness upon a “definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors.” United
States v. McGarity, 669 F.3d 1218, 1264 (11th Cir. 2012) (internal quotation marks
omitted), cert. denied, McGarity v. United States, S. Ct. 2012, __ U.S. __, __ S. Ct.
__, (No. 12-5740, October 1, 2012). The party challenging the sentence bears the
burden of proof. Id.
We are convinced from the record that the district court properly applied 18
U.S.C. § 3553(a) to the facts of this case and imposed a substantively reasonable
sentence. During the sentencing hearing, the district judge considered Tennison’s
history and characteristics 3 when he referred to the “common thread suggested by
[Tennison’s] activities over the past three or four years.” Tennison’s activities over
the past four years included: (1) a 2008 charge for two counts of forgery; (2) a
2009 conviction for violation of the RICO Act; (3) a July 2010 charge for criminal
attempt—theft by taking; criminal damage to property; larceny; and invasion of
3
18 U.S.C. § 3553(a)(1).
4
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privacy—criminal trespass; (4) an October 2010 charge for criminal attempt to
commit a felony; knowingly driving a vehicle with a suspended, cancelled, or
revoked registration; no insurance; and driving with a suspended/revoked
registration; and finally (5) a November 2010 charge for armed robbery;
kidnapping; theft by taking a motor vehicle; and burglary. Tennison had also been
convicted of aggravated battery in 1992 and robbery in 2003.
Albeit without mentioning specifics, the district court also found that there
was a need for the sentence to better reflect the seriousness of the offense, promote
respect for the law, and provide just punishment. 4 Likewise, the court found that
an upward variance would afford greater deterrence to criminal conduct 5 and
protect the public from further crimes of Tennison.6
Given that the district court explicitly considered Tennison’s extensive
criminal history, we are not persuaded that the district court committed a clear
error of judgment. Tennison argues that there were no “extraordinary
circumstances” warranting an “extraordinary” 60%–100% percent increase from
the Guidelines range of 24 to 30 months. We reject, as the Supreme Court requires
us to, “an appellate rule that requires ‘extraordinary’ circumstances to justify a
4
18 U.S.C. § 3553(a)(2).
5
18 U.S.C. § 3553(a)(2)(B).
6
18 U.S.C. § 3553(a)(2)(C).
5
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sentence outside the Guidelines range.” Gall, 552 U.S. at 47, 128 S. Ct. at 595.
The percentage increase from the Guidelines range is relevant, see United States v.
Kapordelis, 569 F.3d 1291, 1317 (11th Cir. 2009), but we are not bound by “a
rigid mathematical formula that uses the percentage of a departure as the standard
for determining the strength of the justifications required for a specific sentence.”
Gall, 552 U.S. at 47, 128 S. Ct. at 595. Instead, the proper inquiry is whether there
existed a “sufficiently compelling” justification for the district court’s departure
from the Guidelines range. Kapordelis, 569 F.3d at 1317 (internal quotation marks
omitted). As discussed above, Tennison’s lengthy criminal history and his
manipulation of his co-defendants were considered by the district court in
accordance with § 3553(a). Moreover, the fact that Tennison’s 48-month sentence
is far below the 15-year minimum is a strong indication of substantive
reasonability. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)
(holding that a sentence was substantively reasonable, in part because it was “well
below the maximum ten-year sentence”). Giving the district court the deference
which it is due, we find no abuse of discretion, and affirm the decision to impose a
sentence of 48 months imprisonment.
AFFIRMED.
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