United States v. Trevin Gibson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREVIN MAURICE GIBSON,
Defendant - Appellant.
No. 14-4169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL RONDALE GIBSON,
Defendant - Appellant.
No. 14-4183
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESHAUN ENTREA SPRUILL,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:12-cr-00075-D-1; 4:12-cr-00075-D-2;
4:12-cr-00075-D-4)
Argued: September 17, 2015 Decided: October 22, 2015
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Niemeyer and Judge Shedd joined.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellants. Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Terry F. Rose,
Smithfield, North Carolina for Appellant Trevin Maurice Gibson.
Brian M. Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North
Carolina, for Appellant Michael Rondale Gibson. Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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BARBARA MILANO KEENAN, Circuit Judge:
Deshaun Spruill, Michael Gibson, and Trevin Gibson
(collectively, the defendants) each pleaded guilty to two counts
of using or carrying a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c)(1). In their
consolidated appeals, they present the following issues: (1)
whether Spruill’s sentence is procedurally unreasonable; (2)
whether Michael Gibson’s and Trevin Gibson’s sentences are
substantively unreasonable; and (3) whether Trevin Gibson’s
sentence constitutes cruel and unusual punishment in violation
of the Eighth Amendment. Upon review of the defendants’
sentences, we affirm the district court’s judgment.
I.
The defendants participated in a number of armed robberies
between September 2011 and January 2012, which occurred at “fast
food” restaurants throughout the eastern part of North Carolina.
Trevin Gibson and Michael Gibson participated in, respectively,
ten and five robberies. Deshaun Spruill participated in ten
robberies and one additional robbery attempt.
In each of these robberies, various defendants, with their
faces concealed by hooded sweatshirts, bandanas, or masks,
entered a fast food restaurant brandishing firearms and knives.
One defendant escorted the store manager at gunpoint to open the
restaurant’s safe, while the remaining defendants stayed in the
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front of the restaurant and removed cash from the cash
registers. The government described the robbery spree as a
“reign of terror” across multiple jurisdictions, which required
the use of substantial law enforcement resources and the
coordination of multiple law enforcement agencies.
In June 2012, the defendants were charged with 16 counts of
robbery under the Hobbs Act, 18 U.S.C. § 1951, and 16 counts of
using firearms during the robberies, in violation of 18 U.S.C.
§ 924(c)(1). 1 Under their respective plea agreements, each
defendant pleaded guilty to two counts of using or carrying a
firearm during a crime of violence under Section 924(c)(1), in
exchange for the government dismissing the other charges. These
counts of conviction carried a mandatory minimum sentence of
five years’ imprisonment for the first offense and 25 years’
imprisonment for the second offense, to be served consecutively.
See 18 U.S.C. § 924(c)(1)(A), (C), (D). The government and each
defendant agreed that the advisory guideline sentence for each
defendant was the statutory minimum of 30 years’ imprisonment.
The district court accepted the defendants’ guilty pleas, and
1Five defendants were accused of participating in this
spree. Codefendant Marcus Garrett did not file an appeal of his
conviction or his sentence. This Court dismissed codefendant
Prentise Wilkins’ appeal pursuant to a valid waiver of his
appellate rights. See United States v. Wilkins, 604 F. App’x.
322, 323 (4th Cir. 2015).
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found each of the three defendants guilty of the two firearms
charges.
Spruill received a 396-month sentence, which upwardly
departed from the advisory guideline sentence of 360 months.
Spruill argued at the sentencing hearing that the minimum
sentence allowed by statute would be sufficient punishment,
because he had a difficult family background and no criminal
record, had graduated from high school and enrolled in community
college, had committed to enlisting in the Army, and had
accepted responsibility for his actions. The district court
explained that it had “considered all arguments [Spruill’s]
lawyer [had] made,” but found that other factors warranted an
upward departure. The court found that Spruill had participated
in eight robberies and one attempted robbery, in addition to the
two robberies forming the basis of Spruill’s firearms
convictions.
The court explained that the robbery spree “terrorized” the
victims who were “making minimum wage” and “trying to live an
honest life,” and attributed Spruill’s criminal conduct to his
own “greed.” During the sentencing hearing, the district court
commented that Spruill had exhibited a “smirk,” which indicated
that Spruill felt “no remorse at all.” Based on these factors,
the district court concluded that “society needs to be protected
from [Spruill].” The court relied on the dismissed robbery and
5
firearms counts to apply U.S.S.G. § 5K2.21, which allowed the
court to upwardly depart “to reflect the actual seriousness of
the offense based on conduct underlying a charge dismissed as
part of a plea agreement.” In sentencing Spruill for the first
count of conviction, the court upwardly departed from the
guideline sentence of 60 months, and imposed a sentence of 96
months. On the second count, the court imposed the guideline
sentence of 300 months’ imprisonment.
The district court also applied an upward departure in
sentencing Michael Gibson. At the sentencing hearing, Michael
Gibson argued that the guideline sentence was an appropriate
sentence based on his youth, his substance abuse problems, and
his acceptance of responsibility. Disagreeing with this
argument, the government asked the court to consider a
photograph from the September 3, 2011 robbery, which depicted a
victim whose countenance reflected an “absolute vision of fear.”
The district court considered the violent nature of the
robberies, the vulnerability of the victims, Michael Gibson’s
criminal history, and the dismissed robbery and firearms counts,
and found that “serious punishment” was required “to reflect the
serious nature of his crimes” and to “protect society.” The
district court cited the dismissed robbery and firearms charges
and applied a Section 5K2.21 upward departure from the guideline
sentence of 60 months and sentenced Michael Gibson to 132 months
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on the first firearms count. The court imposed the guideline
sentence of 300 months’ imprisonment on the second firearms
count.
The district court imposed a greater sentence on Trevin
Gibson than the sentences received by any of his codefendants.
When Trevin Gibson participated in the first two robberies, he
was still in the custody of the Bureau of Prisons (BOP), serving
a sentence in home detention for breaking and entering a
sporting goods store and stealing 12 firearms. After his
release from BOP custody, while on supervised release, Trevin
Gibson participated in eight more robberies, bringing his total
participation to ten robberies. Ultimately, Trevin Gibson was
convicted of two firearms charges arising from robberies
committed while he was on supervised release.
At his sentencing hearing, Trevin Gibson argued that the
guideline sentence of 30 years’ imprisonment was sufficient,
especially considering the likely revocation of supervised
release in his prior criminal case. However, he did not offer
any particular mitigating reason that would have justified a
more lenient sentence than those already imposed on Michael
Gibson or Spruill. At the hearing, the government gave a vivid
description of the robbery spree. In addition to describing the
“reign of terror” that these robberies caused and the
substantial law enforcement resources expended, the government
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highlighted Trevin Gibson’s prior criminal history and his
participation in some of the robberies while still in BOP
custody.
The district court found that Trevin Gibson’s commission of
the first two robberies while in BOP custody, and his commission
of eight more robberies while on supervised release, reflected a
complete lack of respect for the law. In addition, the district
court discussed the severity of the robberies, their effect on
the victims, and the likelihood that Trevin Gibson would engage
in recidivist conduct. Taking into account Trevin Gibson’s age,
education, and “the entire record in this case,” the court
applied a Section 5K2.21 upward departure. As a result, Trevin
Gibson received a sentence of 216 months’ imprisonment on the
first firearms count, increased from the guideline sentence of
60 months. He also received the guideline sentence of 300
months’ imprisonment on the second firearms count, which yielded
a cumulative consecutive sentence of 516 months’ imprisonment
for the two offenses. This appeal followed.
II.
The defendants each present different arguments regarding
their respective sentences and the reasons why those sentences
should be vacated and the cases remanded for resentencing.
Accordingly, we will address those arguments separately.
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A.
Deshaun Spruill argues on appeal that the district court
imposed a procedurally unreasonable sentence, in that the court
failed to address directly the arguments that Spruill raised at
sentencing. Spruill asks that we adopt the Seventh Circuit’s
holding in United States v. Villegas-Miranda, and conclude that
a district court must address all the sentencing arguments
raised by a defendant that are “not so weak as not to merit
discussion.” 579 F.3d 798, 802 (7th Cir. 2009) (quoting United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)).
Assuming, without deciding, that we would adopt such a
rule, the rule still would be inapplicable to the arguments that
Spruill raised at his sentencing hearing. The Seventh Circuit
cases on which Spruill relies require only that a district court
explain its rejection of a particular legal principle raised by
a defendant. See Villegas-Miranda, 579 F.3d at 803–04 (holding
that a district court must address an argument that a defendant
is entitled to credit for time served in state custody);
Cunningham, 429 F.3d at 679 (vacating a district court sentence
for failing to address the defendant’s argument for a
“diminished capacity” departure under U.S.S.G. § 5K2.13). Here,
however, Spruill did not advance arguments invoking any
particular legal principle or doctrine. Rather, Spruill’s
factual arguments, which included his enrollment in community
9
college and his commitment to enlist in the Army, concerned the
appropriate weight to be accorded the circumstances of his
personal history under the Section 3553(a) factors. Therefore,
we do not give further consideration to Spruill’s request that
we adopt certain procedures imposed by the Seventh Circuit, and
turn to consider his Section 3553(a) arguments under our own
circuit precedent.
We have held that a district court must consider the
statutory factors and explain the reasons for its sentence, but
that the court need not explicitly reference Section 3553(a) or
discuss on the record every statutory factor. United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The district court
is required only to make an individualized assessment that is
adequate to allow meaningful appellate review. United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). Accordingly, we
infer that the district court has considered all relevant
arguments presented at the sentencing hearing, especially when
the court states on the record that it has done so. See Rita v.
United States, 551 U.S. 338, 358–59 (2007) (holding that the
sentencing judge is not required to state explicitly that he has
heard and considered all arguments when “[t]he record makes
clear that the sentencing judge listened to each argument”).
At Spruill’s sentencing, the district court expressly
stated that it had considered “all arguments [Spruill’s] lawyer
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has made” and “all [Section 3553(a)] factors” before sentencing
Spruill. Those statements by the district court demonstrate
that the court considered and rejected Spruill’s arguments. Id.
at 358. In addition, the court found that the “smirk” Spruill
exhibited before the court was evidence of his lack of remorse,
and indicated a need for incarceration to deter Spruill from
engaging in future criminal activity. When the district court
applied an upward departure under U.S.S.G. § 5K2.21, the court
primarily relied on the nature and seriousness of the dismissed
robbery and firearms counts. Considered as a whole, this record
shows that the district court made an individualized assessment
and gave an adequate explanation of its reasons for imposing
Spruill’s particular sentence. See Carter, 564 F.3d at 330. We
thus conclude that Spruill’s sentence was not procedurally
unreasonable.
B.
Michael Gibson argues that his sentence of 432 months’
imprisonment was substantively unreasonable. He contends that
the district court failed to consider his youth as a mitigating
factor, overstated the seriousness of his youthful criminal
history, and failed to consider the “effect of aging” in
determining the likelihood that he would commit additional
criminal acts if released. We address each of these arguments
in turn.
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This Court reviews the substantive reasonableness of a
district court’s sentence for abuse of discretion, taking into
account the totality of the circumstances. Gall v. United
States, 552 U.S. 38, 56 (2007); United States v. Morace, 594
F.3d 340, 345–46 (4th Cir. 2010). The Supreme Court also has
held that the abuse-of-discretion standard requires that
appellate courts reject the use of rigid percentage-based
formulas when evaluating the substantive reasonableness of a
non-guideline sentence. Gall, 552 U.S. at 47–49.
We conclude that Michael Gibson has not shown that the
district court failed to consider his relative youth during the
sentencing hearing. The district court stated on the record
that it had “considered all arguments [Michael Gibson’s] lawyer
has made.” This record is sufficient to show that the district
court actually considered the argument concerning Michael
Gibson’s relative youth presented at the sentencing hearing.
See Rita, 551 U.S. at 358–59; see also discussion supra Part
II.A.
Additionally, we conclude that Michael Gibson’s reliance on
Roper v. Simmons, 543 U.S. 551, 569–70 (2005), and United States
v. Howard, 773 F.3d 519, 531 (4th Cir. 2014), is unavailing.
Unlike the defendant in Simmons, who was sentenced to the death
penalty for acts committed as a juvenile, Michael Gibson was
sentenced to a term of imprisonment, and received an upward
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departure, for crimes he committed at 19 years of age. Although
this Court in Howard cautioned district courts against
“focus[ing] extensively on a [juvenile criminal record] . . . at
the expense of a reasoned analysis of other pertinent factors,”
773 F.3d at 531, Michael Gibson’s criminal history only includes
one crime committed before his eighteenth birthday, and the
district court mentioned that marijuana offense only in passing
while focusing on his more serious adult convictions and on
other Section 3553(a) factors. And nothing in the record
supports a conclusion that the court focused on that single
marijuana offense “at the expense of a reasoned analysis of
other pertinent factors.” Id. Accordingly, we conclude that
the district court did not fail to consider Michael Gibson’s
youth as a factor in determining his appropriate sentence.
Michael Gibson next argues that a total sentence of 30
years would have been sufficient in his case. He notes that if
he were given such a sentence he would be over 50 years old at
the time of his release, and that, generally, statistics show
that the incidence of recidivism drops significantly for
offenders over 45 years old. See Howard, 773 F.3d at 533
(collecting studies). We are not persuaded by this argument.
Statistical correlations among large populations will not
undermine the validity of a district court’s careful,
individualized assessment of a particular defendant convicted of
13
a particular crime. We therefore turn to review the factors
that the district court actually cited when sentencing Michael
Gibson.
The district court emphasized the serious nature of the
robberies, the vulnerability of the victims, and Michael
Gibson’s failure to “turn away from a criminal lifestyle” after
his prior convictions. Michael Gibson’s sentence of 432 months
for the two firearms convictions reflects a 20-percent increase
over the combined guideline sentence for both counts. His
attempt to focus solely on the district court’s greater upward
departure on the first count ignores Gall’s directive that
substantive reasonableness be evaluated by examining the
totality of the circumstances without “rigid mathematical
formulation.” 552 U.S. at 47–51. Moreover, without a plea
agreement, Michael Gibson would have faced a statutory minimum
of an additional 75 years’ imprisonment for the three dismissed
firearms counts that provided part of the basis for the Section
5K2.21 departure. See 18 U.S.C. § 924(c)(1)(C). Therefore, we
conclude that the imposition of a six-year upward departure for
the three dismissed firearms counts and the five robbery counts
was not an abuse of discretion, and that Michael Gibson’s 36-
14
year sentence is substantively reasonable under the totality of
the circumstances. 2
C.
Trevin Gibson argues that his sentence of 43 years is
substantively unreasonable and violates the Eighth Amendment’s
prohibition against cruel and unusual punishment. We first
analyze the substantive reasonableness of the sentence before
turning to the constitutional question.
Trevin Gibson’s central contention regarding substantive
reasonableness is that the factual record was insufficient to
support the 13-year upward departure imposed by the district
court. As discussed above, we review the substantive
reasonableness of a sentence for abuse of discretion under an
analysis of the totality of the circumstances. Gall, 552 U.S.
at 51.
The district court found that Trevin Gibson’s participation
in the robbery spree while still serving a sentence in BOP
custody and on supervised release reflected “utter and sheer
disrespect for the law,” and indicated a high risk of recidivism
2Because the district court did not err in calculating
Michael Gibson’s advisory guideline sentence, and we determine
that the district court did not abuse its discretion in applying
a Section 5K2.21 departure, we need not address Michael Gibson’s
argument that the court’s alternative variant sentence is
substantively unreasonable.
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if he were to receive only the minimum punishment afforded by
statute. The court also discussed Trevin Gibson’s participation
in eight other robberies in the same spree, and concluded that
“these violent, despicable acts” warranted an upward departure
in sentence. Trevin Gibson’s eight dismissed firearms counts
would have carried a mandatory minimum of 200 years of
additional imprisonment, see 18 U.S.C. § 924(c)(1)(C), but the
district court applied only a 13-year upward departure under
Section 5K2.21. Accordingly, we conclude that the district
court listed sufficient reasons, complete with citations to the
record, to support the substantive reasonableness of the upward
departure.
Trevin Gibson argues, nevertheless, that the guideline
sentence already accounted for his criminal history and the
nature of the typical armed robbery, with the result that the
district court unreasonably “double counted” those factors in
imposing the upward departure of 13 years. However, contrary to
Trevin Gibson’s characterization of the sentencing proceedings,
the district court only counted these factors once, because
neither factor raised the advisory guideline sentence from the
statutory mandatory minimum. And, in any event, the sentencing
guidelines permit double counting unless expressly prohibited,
which was not the case here. See United States v. Rivera-
Santana, 668 F.3d 95, 102 (4th Cir. 2012) (holding that a single
16
prior conviction may properly be used to calculate two upward
departures, an upward variance, and a sixteen-level enhancement,
because the guidelines do not prohibit such multiple counting);
see also United States v. Crawford, 18 F.3d 1173, 1179 (4th Cir.
1994) (holding that “double counting is permissible under the
guidelines except where it is expressly prohibited”) (internal
quotation marks omitted). Accordingly, we conclude that Trevin
Gibson’s sentence is substantively reasonable.
Trevin Gibson also argues that his sentence of 43 years
constitutes cruel and unusual punishment, in violation of the
Eighth Amendment. We disagree.
Although the Eighth Amendment requires proportionality in
punishment, the Supreme Court has made clear that the Eighth
Amendment “forbids only extreme sentences that are grossly
disproportionate to the crime.” Graham v. Florida, 560 U.S. 48,
59–60 (2010) (emphasis added); see also United States v. Cobler,
748 F.3d 570, 575 (4th Cir. 2014). And the Supreme Court has
identified only one such grossly disproportionate sentence of
imprisonment, in Solem v. Helm, 463 U.S. 277, 303 (1983), in
which the defendant received a sentence of life imprisonment
without the possibility of parole for a single conviction for
passing a bad check in the amount of $100. Id. at 281–82.
Indeed, the Supreme Court even has upheld under the Eighth
Amendment a sentence of 25 years to life imprisonment for a
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single non-violent crime of shoplifting $1,200 worth of golf
clubs. Ewing v. California, 538 U.S. 11, 18-20 (2003)
(plurality opinion).
In contrast, Trevin Gibson was sentenced to a term of 43
years’ imprisonment for two firearms offenses related to armed
robberies, which were part of a robbery spree involving multiple
violent crimes that “terrorized” several communities, and were
committed while he was in home detention or on supervised
release for another serious firearms offense. Trevin Gibson was
responsible for over $5,000 in victim losses attributable to his
crimes of conviction, and over $15,000 in victim losses related
to the dismissed robberies. Therefore, we hold that, under the
Supreme Court’s proportionality decisions and our decision in
Cobler, Trevin Gibson’s sentence is not grossly disproportionate
to his criminal conduct, even if considered solely with
reference to the two counts of conviction. Accordingly, we
conclude that his sentence does not violate the Eighth
Amendment.
III.
For these reasons, we affirm the sentences of Deshaun
Spruill, Michael Gibson, and Trevin Gibson.
AFFIRMED
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