United States v. Devane Jenkins

Case: 16-10375 Date Filed: 01/26/2017 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10375
Non-Argument Calendar
________________________
D.C. Docket No. 0:15-cr-60121-WJZ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEVANE JENKINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 26, 2017)
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 16-10375 Date Filed: 01/26/2017 Page: 2 of 9
Devane Jenkins pleaded guilty to one count of aiding and abetting a Hobbs
Act robbery in violation of 18 U.S.C. § 1951(a), and one count of aiding and
abetting the knowing use and possession of a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced him to a total
of 288 months imprisonment — 168 months for the robbery offense and 120
months for the firearm offense to run consecutively. Jenkins challenges his
sentence for the robbery offense, contending that it is procedurally unreasonable
because the district court did not adequately explain the reasons for the upward
variance it imposed. He also contends that the sentence for the robbery offense is
substantively unreasonable because the district court (1) failed to properly consider
his history and characteristics and (2) imposed an upward variance based on
conduct already considered in United States Sentencing Guidelines enhancements.
I.
Jenkins and Keondrae Neely robbed a restaurant. In the course of the
robbery, Jenkins hit an employee on the head with a gun and fired his gun three
times at a car after the driver refused to move it from blocking them in. Jenkins
and Neely’s escape led to a high speed police chase, which ended with Jenkins
crashing into another car, a foot pursuit, and finally their apprehension by the
police. Once caught, both Jenkins and Neely confessed.
2
Case: 16-10375 Date Filed: 01/26/2017 Page: 3 of 9
Jenkins pleaded guilty to both offenses. The district court calculated his
advisory guideline range as 70 to 87 months imprisonment for the robbery offense,
followed by a mandatory consecutive 120 months imprisonment for the firearm
offense. Jenkins asked for a 60 month sentence for the robbery offense based on
his history and characteristics, and the government sought a 240 month sentence
for that offense — the statutory maximum — arguing that Jenkins’ criminal history
category understated his prior criminal record. The district court sentenced Jenkins
to 168 months imprisonment for the robbery offense to run consecutively with a
sentence of 120 months for the firearm offense.
II.
We review for abuse of discretion the reasonableness of a sentence. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). Under that standard,
we will sometimes “affirm the district court even though we would have gone the
other way had it been our call.” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc). “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” but balancing them unreasonably.
Id.
3
Case: 16-10375 Date Filed: 01/26/2017 Page: 4 of 9
When reviewing the reasonableness of a sentence, we first ensure that the
district court committed no significant procedural error, such as improperly
calculating the guideline range or inadequately explaining the chosen sentence.
Gall, 552 U.S. at 51, 128 S. Ct. at 597. We then examine whether the sentence was
substantively reasonable in light of the totality of the circumstances. Id. “The
party challenging the sentence bears the burden to show it is unreasonable in light
of the record and the [18 U.S.C.] § 3553(a) factors.” United States v. Tome, 611
F.3d 1371, 1378 (11th Cir. 2010)
A.
Jenkins first contends that his 168 month sentence on the robbery count was
procedurally unreasonable because the district court did not adequately explain the
reasons for the upward variance. If a district court determines that a sentence
outside the guidelines range is warranted, it “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
departure should be supported by a more significant justification than a minor one.
After settling on the appropriate sentence, [the district court] must adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Id.
4
Case: 16-10375 Date Filed: 01/26/2017 Page: 5 of 9
The district court’s explanation of the upward variance was sufficient. In
sentencing Jenkins to 168 months imprisonment for the robbery offense, the court
explained that it had considered the statements of all parties, the advisory guideline
range, and all of the § 3553(a) factors. The court acknowledged that it was
imposing an upward variance for the reasons given by the government in its
motion for an upward variance. Those reasons were extensive.
For example, in its motion, the government explained that Jenkins had been
given many chances at rehabilitation in the past but continued to reoffend, had
narrowly avoided killing two victims during the commission of two violent crimes,
and had committed a violent crime even while he was incarcerated. It also noted
that his prior criminal history record included several burglary convictions and one
conviction for armed robbery with a firearm, but “[i]n several cases, [Jenkins]
either received no criminal history points or only received one criminal history
point under Section 4A1.1(e) [of the guidelines] because there was no intervening
arrest and the cases were deemed to be related.” It argued that his criminal history
showed that he was violent and dangerous, and indicated a strong likelihood that
he would commit future crimes.
At the sentence hearing, the government similarly explained that Jenkins’
“criminal history [category] clearly understates the amount of danger that [he]
5
Case: 16-10375 Date Filed: 01/26/2017 Page: 6 of 9
presents to this community.” The government discussed at length that history and
his “pattern of violence,” describing Jenkins’ “first contacts with the system” at
age twelve and many other instances of violent crimes ever since. For example, it
described his robbery of another child whom he shot in the eye with a BB gun
when he was twelve years old. At sixteen years old, he entered a restaurant with a
gun and attempted to rob everyone inside. The government explained that, during
that robbery, he stood over one victim with his firearm and pulled the trigger, but
the gun malfunctioned and didn’t fire. It noted that the victim in this case, much
like the victim in that robbery, narrowly escaped death. It also described his
violent assault of another inmate while Jenkins was incarcerated, where Jenkins
“was armed with a metal shank that he had made while in custody.” The
government noted that, just five months after he was released from that
imprisonment, he committed the armed robbery in this case.
Based on his prior crimes, many of which were violent, the government
stated that his pattern of violence appeared to be escalating. It acknowledged that
the court should consider Jenkins’ unfortunate background in determining his
sentence, although it noted that Jenkins’ mother denied several of his statements
about his upbringing. It asserted that the § 3553(a) factors — particularly the need
for the sentence to reflect the seriousness of the offense, to promote respect for the
6
Case: 16-10375 Date Filed: 01/26/2017 Page: 7 of 9
law, to provide just punishment, to afford adequate deterrence to others, and to
protect the public — warranted an upward variance to 240 months, the statutory
maximum, for the robbery offense.
The record also reflects that the district court listened to the arguments of
both the government and the defense at the sentence hearing, interjected with
questions during defense counsel’s arguments, and understood Jenkins’
characteristics and difficult background. See Rita v. United States, 551 U.S. 338,
357–58, 127 S. Ct. 2456, 2468–69 (2007) (holding that a sentencing judge’s brief
explanation was legally sufficient because the record showed that the judge
listened to each argument, considered supporting evidence, and was aware of the
defendant’s characteristics and background). For example, at the sentence hearing
defense counsel extensively described Jenkins’ background, emphasizing the
physical and sexual abuse that Jenkins suffered when he was younger, as well as
his addiction to drugs. After listening to those statements, the court asked defense
counsel to explain why Jenkins should receive a shorter sentence than Neely
received, as Jenkins “was the prime mover in this scheme” and “was far more
culpable” than Neely. The court explained that it did not dispute that Jenkins came
from a terrible background, but it decided to vary upwards from the guidelines
range based on his extensive criminal history.
7
Case: 16-10375 Date Filed: 01/26/2017 Page: 8 of 9
Based on that reason, the government’s reasons, and the other reasons the
court provided at the sentence hearing, the court concluded that an upward
variance was justified. Because the district court gave a “significant justification”
for its upward variance, and because its reasons for imposing the sentence were
clear from the record, its explanation of the upward variance was sufficient. Gall,
552 U.S. at 50, 128 S. Ct. at 597. As a result, the sentence was not procedurally
unreasonable.
B.
Jenkins next contends that his 168 month sentence was substantively
unreasonable. He argues that the district court failed to properly consider his
history and characteristics. In imposing a particular sentence, a district court must
consider several factors. See 18 U.S.C. § 3553(a). One of those factors is the
“history and characteristics of the defendant.” Id. § 3553(a)(1). As we have
already explained, the district court did consider Jenkins’ history and
characteristics in determining his sentence. Its decision to give other factors
greater weight was within its discretion. United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.”). As a result, his argument
fails.
8
Case: 16-10375 Date Filed: 01/26/2017 Page: 9 of 9
Jenkins also contends that the sentence was substantively unreasonable
because, in imposing the upward variance, the district court considered conduct
that had already been considered in determining his advisory guidelines range.
This Court has previously explained that, when imposing a variance, a district
court can rely on certain aspects of a defendant’s conduct that it has already
considered in imposing an enhancement, particularly where a defendant’s conduct
was egregious or extraordinary. United States v. Amedeo, 487 F.3d 823, 833–34
(11th Cir. 2007). As a result, the district court did not abuse its discretion when
considering a variance by relying on conduct already included as the basis for an
enhancement.
AFFIRMED.
9