United States v. Robert Dewayne Tolbert

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 10, 2010
No. 09-15669 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00011-CR-1-CG-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DEWAYNE TOLBERT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 10, 2010)
Before CARNES, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Robert Dewayne Tolbert appeals his sentence of 180 months of
imprisonment for twice possessing a firearm as a convicted felon. 18 U.S.C. §
922(g)(1). Tolbert argues that his sentence is unreasonable. We affirm.
Tolbert entered an agreement to plead guilty to two counts of possessing a
firearm as a convicted felon, id., in exchange for a recommendation from the
government for a sentence at the low end of the guideline range and the dismissal
of a charge for knowingly receiving, possessing, and concealing stolen firearms, id.§ 922(j). Tolbert admitted in the factual resume that he had pawned a 12 gauge
shotgun and had burgled a residence, during which he stole five firearms. Tolbert
also admitted that he had previously been convicted of third degree burglary, first
degree theft of property, and fraudulent use of a credit card. The district court
accepted Tolbert’s pleas of guilty to twice possessing illegally a firearm, id. §
922(g)(1).
The presentence investigation report revealed that Tolbert had a substantial
criminal history. In September 1996, Tolbert was convicted of third degree theft of
property for stealing gasoline from a convenience store. In May 1997,Tolbert was
convicted of first degree theft of property and third degree burglary after
attempting to break into a convenience store and fleeing in a stolen truck, after
which the state moved to revoke his probation four times. In January 2005,
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Tolbert was convicted of unauthorized use of a motor vehicle, and in March 2005,
Tolbert was convicted of fraudulent use of a credit card and resisting arrest. In
September 2008, Tolbert was convicted of second degree burglary, third degree
burglary, and breaking and entering a motor vehicle. Tolbert also was arrested in
2004 for reckless endangerment and in 2007 for breaking and entering a motor
vehicle and committing second and third degree burglary, but the four charges
were nol prossed.
Tolbert was subject to the Armed Career Criminal Act, id. § 924(e), but his
status changed before the sentencing hearing. In October 2009, an Alabama court
granted a joint motion by Tolbert and the state to amend Tolbert’s September 2008
conviction for third degree burglary to the lesser charge of second degree theft of
property.
The presentence report stated that Tolbert had a total offense level of 25.
With a criminal history of VI, Tolbert faced a sentencing range between 110 and
137 months of imprisonment and a maximum statutory sentence of 20 years of
imprisonment. The report mentioned that the district court could depart upward
from the guideline range to address Tolbert’s substantial criminal history, United
States Sentencing Guideline § 4A1.3(a) (Nov. 2003).
At the sentencing hearing, Tolbert moved to dismiss his counsel, and
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counsel responded that he had “done everything [he] could think of to do for
[Tolbert],” which included having Tolbert’s conviction reduced “to resolve the
armed career offender situation.” The district court opined that Tolbert had
“manipulat[ed] . . . the system” in an “attempt to circumvent the statutory intent of
Congress” to punish recidivists.
The district court “review[ed] the statutory purposes of sentencing” and
determined that the guideline range failed to “adequately reflect [Tolbert’s]
criminal history,” to address his “likelihood of recidivism,” or to “adequately
punish [Tolbert] for the offense for which [he] [had] been convicted.” The district
court “var[ied] [its] sentence above the guidelines.” It imposed a sentence of 180
months of imprisonment, which was “the same sentence [the court] would have
given [Tolbert] had [he] been subject to the provisions of 924(e).”
Tolbert argues that his sentence is the product of a “punitive whim,” but we
disagree. The district court reasonably determined that the guideline range did not
adequately reflect Tolbert’s criminal history. See United States v. Shaw, 560 F.3d
1230, 1237–40 (11th Cir. 2009). Tolbert had avoided prosecution for several
serious crimes, and his crimes had escalated over time in quantity and severity.
The district court considered the sentencing factors and determined that an upward
variance was necessary to deter Tolbert from future similar crimes, protect the
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public against those potential crimes, and impose a just punishment. See 18 U.S.C.
§§ 3553(a), (c); Shaw, 560 F.3d at 1239–40; United States v. Burge, 407 F.3d
1183, 1188 (11th Cir. 2005). The district court did not abuse its discretion by
sentencing Tolbert to a term of 180 months of imprisonment.
We AFFIRM Tolbert’s sentence.
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