United States v. DeWayne Blakeney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4545
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEWAYNE JEMALE BLAKENEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (4:10-cr-00036-D-1)
Argued: October 25, 2012 Decided: December 13, 2012
Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a separate opinion concurring in the judgment.
ARGUED: Mary Jude Darrow, Raleigh, North Carolina, for
Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 8, 2010, DeWayne Jemale Blakeney pleaded
guilty to one count of manufacturing counterfeit federal reserve
notes, in violation of 18 U.S.C. § 471. Blakeney now appeals
his sentence of 120 months imprisonment arguing that it is
unreasonable. For the following reasons, we affirm the district
court’s judgment.
I.
On May 6, 2009, Blakeney passed counterfeit currency
at a Subway restaurant in Vanceboro, North Carolina, and was
arrested the next day. On May 20, 2009, Nicki Nolder and Ashley
Duzan passed counterfeit bills at a Walmart in Washington, North
Carolina, and were also arrested. Further investigation again
led to Blakeney, who admitted producing about $30,000 in
counterfeit currency together with Noah Campbell and Thomas
King. Blakeney was cooperative and admitted his criminal
conduct. In a two-count indictment filed in the Eastern
District of North Carolina on May 5, 2010, Blakeney was charged
with counterfeiting and conspiracy to counterfeit. On November
8, 2010, he pled guilty to counterfeiting in violation of 18
U.S.C. § 471.
In the presentence report, the probation officer
recommended a base offense level of 9 under U.S. Sentencing
2
Guidelines (“USSG”) § 2B5.1(a), with a 4-level increase under
subsection (b)(1)(B) for an offense involving $10,000-$30,000,
and a further increase to offense level 15 because Blakeney
possessed counterfeiting devices or materials. See §
2B5.1(b)(2)(A), (b)(3). With a 2-level role adjustment under
USSG § 3B1.1(c) and a 3-level reduction for acceptance of
responsibility, USSG § 3E1.1, the total recommended offense
level was 14. Blakeney had 15 criminal history points, which
placed him in category VI. As a result, his recommended
advisory Guidelines range was 37-46 months. The probation
officer also suggested that the district court consider an
upward departure pursuant to USSG § 4A1.3 because category VI
was inadequate to account for Blakeney’s prior criminal record,
including 28 prior convictions, 16 of which were unscored.
Blakeney filed objections challenging the Guidelines
computation, in which he mentioned as a “factual” objection that
10 of the 50 or so arrests listed in paragraph 42 of the
presentence report resulted from a failed relationship. The
United States moved for an upward departure under § 4A1.3,
pointing out that Blakeney, who was 38 years old, had 28
criminal convictions between 1992 and 2009, most of which were
for relatively minor crimes such as larceny, drug possession,
trespassing, communicating threats, and driving offenses.
However, Blakeney had one prior federal conviction for a crack
3
conspiracy and, after he served his federal sentence, he
violated his supervised release and, therefore, his supervised
release was revoked. The United States argued that category VI
was an inadequate representation of Blakeney’s criminal history,
and that Blakeney was very likely to commit future crimes, thus
making an upward departure appropriate. Blakeney in turn filed
a sentencing memorandum in which he requested a downward
departure to a sentence of 33 months, based on his concern that
North Carolina had given him less credit than he deserved
against his prior state sentences for his time in detention on
state charges.
When Blakeney was sentenced in May 2011, the district
court overruled his objections to the presentence report. The
United States asked for an upward departure to a sentence of 60
months. Defense counsel asked for a sentence at the top of the
Guidelines range. The district court departed above category VI
by increasing the offense level from 14 to 26, which produced a
new Guidelines range of 120-150 months. In doing so, the
district court stated that it was not required to discuss each
offense level it rejected in the course of selecting the
appropriate offense level, citing United States v. Dalton, 477
F.3d 195, 199 (4th Cir. 2007).
In support of the offense level increase, the district
court observed that but for the fact that some of Blakeney’s
4
sentences were too old to be counted, he would have had 33
criminal history points, and that his 2004 federal sentence had
been reduced from 140 months to 60 months -- after which he
committed still more offenses.
After considering the 18 U.S.C. § 3553(a) (2006)
factors and the advisory sentencing guidelines, the district
court imposed a sentence of 120 months. The court also ordered
Blakeney to pay restitution in the amount of $1,330 to 11
businesses where he had passed counterfeit currency. The court
noted that it had considered defense counsel’s arguments for a
lower sentence, including her assurances that Blakeney was ready
to change his life and the fact that none of his co-defendants
were prosecuted in federal court. Following the sentencing
hearing, the court set out its findings and reasons for the
upward departure in a written sentencing order. The district
court explained:
Blakeney stands before the court at 38 years of age
with a long, profound, and disturbing criminal
history. Blakeney is a recidivist’s recidivist. . . .
Blakeney’s conduct reflects no respect for the law.
Indeed, instead of rejecting a criminal lifestyle
following his first federal conviction and
incarceration, Blakeney violated his supervised
release conditions by engaging in new felonious
criminal conduct. Even after a revocation of his
supervised release and additional incarceration,
Blakeney returned to his criminal behavior by again
possessing controlled substances and committing the
instant offence. . . . Both specific and general
deterrence are critical in this case, particularly
given Blakeney’s serious offense behavior, extensive
5
criminal record, lack of respect for the law, poor
performance while on probation or under supervision,
and near certain likelihood of recidivism. Society
has long needed protection from Blakeney and today
will receive it.
United States v. Blakeney, No. 4:10-CR-36-D, 2011 WL 2118077, *5
(E.D.N.C. May 27, 2011). 1 Blakeney now appeals his sentence,
arguing that it was unreasonable and an abuse of discretion by
the district court.
II.
We review for reasonableness a sentence imposed by a
district court, applying an abuse of discretion standard. See
Gall v. United States, 552 U.S. 38, 51 (2007). In undertaking
such a review, “we must first ensure that the district court
committed no significant procedural error,” such as “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from
the Guidelines range.” United States v. Diosdado–Star, 630 F.3d
359, 363 (4th Cir. 2011) (internal quotation marks omitted).
1
The district court’s written sentencing order is found at
J.A. 139-161. Citations to the “J.A.” refer to the Joint
Appendix filed by the parties in this appeal.
6
Absent a significant procedural error, our next step is to
assess the substantive reasonableness of the sentence imposed.
See id. In either event, a “deferential abuse-of-discretion
standard” applies to “any sentence, whether inside, just
outside, or significantly outside the Guidelines range.” United
States v. Savillon–Matute, 636 F.3d 119, 122 (4th Cir. 2011)
(internal quotation marks omitted). The district court “has
flexibility in fashioning a sentence outside of the Guidelines
range,” and need only “set forth enough to satisfy the appellate
court that it has considered the parties’ arguments and has a
reasoned basis” for its decision. United States v. Diosdado-
Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Rita v. United
States, 551 U.S. 338, 356 (2007)). As the Supreme Court has
cautioned, “[t]he fact that the appellate court might reasonably
have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall,
552 U.S. at 51.
Blakeney appears to argue that the district court
erred when it departed upward from the advisory Guidelines range
and because the extent of the departure was unreasonable. A
district court may depart upward based upon the inadequacy of
the defendant’s criminal history if “reliable information
indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the
7
defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3(a)(1).
Blakeney contends that in deciding to depart, the
district court failed to give due regard to several factors in
reaching the departure decision, including the non-violent
nature of his offense, the alleged disparity in treatment
between himself and his coconspirators, his cooperation with the
government, his record of minor offenses, and the misdemeanor-
character of his recidivism. To the contrary, the district
court properly considered each of these factors and rejected
them. The district court found Blakeney repeatedly committed
the serious counterfeiting offense, thereby victimizing multiple
establishments. The district court also observed that
Blakeney’s criminal record was “extraordinary,” and that he was
a “recidivist’s recidivist” who “repeatedly rejected living a
crime-free lifestyle.” (J.A.-I 114-15). These observations are
readily supported by appellant’s 16 unscored prior convictions.
A sentencing court may consider unscored convictions in
determining whether an upward departure is warranted. See United
States v. Myers, 589 F.3d 117, 126 (4th Cir. 2009).
The district court also found Blakeney had received
lenient sentences on many prior occasions, “[i]ncluding a lack
of punishment for repeated violations of probationary
sentences.” (J.A.-I 94). The district court further stated
8
that, even were it not to consider the seven misdemeanor
convictions and 10 arrests that stemmed from his romantic
relationship, Blakeney would “still would have amassed a
staggering 22 convictions and 40 arrests in 17 years as an
adult,” including over six years he spent incarcerated. (J.A.-I
95). The court explained that it was only addressing Blakeney’s
arrests to respond to his objections to the Presentence Report.
The district court correctly rejected appellant’s claim of
disparate treatment from his accomplices. See United States v.
Withers, 100 F.3d 1142, 1149 (4th Cir. 1996). Moreover,
Blakeney’s claim that the district court did not factor his
cooperation into its decision to depart is belied by the record. 2
The district court stated, “I have considered your counsel’s
argument about your cooperation and I've taken that into
account. Just punishment includes taking that into account and
I have.” (J.A. 117). In view of the foregoing, the district
court’s decision to depart upward was well-supported by the
record.
After properly calculating the advisory guideline
range and giving the parties an opportunity to argue for an
2
Of note, Blakeney received a three point downward
adjustment to his Guidelines calculation pursuant to USSG
§ 3E1.1: two points for acceptance of responsibility and one
point for assisting authorities in the investigation and
prosecution of his own misconduct.
9
appropriate sentence, a “district judge should then consider all
of the § 3553(a) factors to determine whether they support the
sentence requested by a party.” Gall, 552 U.S. at 49-50. “If
he decides that an outside-Guidelines sentence is warranted, he
must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree
of the [departure].” Id. at 50. When reviewing an upward
departure, the court considers “whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). “[A] major
departure should be supported by a more significant
justification than a minor one.” Gall, 552 U.S. at 50. “If a
court provides an inadequate statement of reasons or relies on
improper factors in imposing a sentence outside the properly
calculated advisory sentencing range, the sentence will be found
unreasonable and vacated.” Hernandez-Villanueva, 473 F.3d at
123. Whether a departure is upward or downward, “[t]he farther
the [sentencing] court diverges from the advisory guideline
range,” the more a reviewing court must “carefully scrutinize
the reasoning offered by the district court in support of the
sentence.” United States v. Hampton, 441 F.3d 284, 288 (4th
Cir. 2006).
10
Here, the district court determined the applicable
sentencing range was 37 to 46 months, based on offense level 14
and criminal history category VI. It then concluded that an
upward departure to offense level 26 “adequately reflects the
nature, number, and seriousness of Blakeney’s prior convictions
and the likelihood of Blakeney committing other serious crimes.”
(J.A.-I 147). Coupling criminal history category VI and offense
level 26 yields a sentencing range of 120 to 150 months
imprisonment. Blakeney was ultimately sentenced to 120 months,
reflecting an upward departure of roughly 260%. 3
Explaining its rationale for the upward departure, the
district court articulated the following facts: (1) Blakeney
“has a deeply troubling history of relentless criminal conduct”
in which he committed crimes for most of his adult life; (2) his
criminal history includes over 29 convictions; (3) he was
convicted twice of larceny and seven times of controlled
substance offenses, including felonies; (4) “but for the time
period limitation in [USSG §]4A1.2(e) and the four point
limitation in [USSG] section 4A1.1(c),” appellant’s criminal
history points would have totaled “an utterly staggering” 33
points; (5) on many occasions, Blakeney received lenient
3
The statute provides for a 20-year maximum term of
imprisonment. 18 U.S.C. § 471.
11
sentences, “[i]ncluding a lack of punishment for repeated
violations of probationary sentences;” (6) he “squandered the
opportunity” afforded to him when his federal sentence on a
crack conspiracy conviction was reduced from 140 months
imprisonment to 60 months imprisonment; (7) he pleaded guilty to
seven charges that stemmed from his relationship with a former
girlfriend, and that on one of those charges Blakeney resisted a
law enforcement officer; and, (8) even if the district court
ignored the seven misdemeanor convictions, appellant “still
would have amassed a staggering 22 convictions and 40 arrests in
17 years as an adult, over six of which were spent
incarcerated.” (J.A.-I 94-95).
In addition, the district court considered the fact
that Blakeney, “in light of the entire record,” was a recidivist
for whom there was “a near certain likelihood of future
recidivism.” (J.A.-I 95). The district court found specific
deterrence of appellant was “critical in this case” because of
his “extraordinary criminal record,” lack of respect for the
law, and the certainty of recidivism. (J.A.-I 116).
Where an upward departure from criminal history
category VI is warranted, a sentencing court must depart
incrementally, explaining the reasons for its departure. See
U.S.S.G. § 4A1.3(a)(4)(B); United States v. Dalton, 477 F.3d
195, 199 (4th Cir. 2007). Even so, “Section 4A1.3’s mandate to
12
depart incrementally does not, of course, require a sentencing
judge to move only one level, or to explain its rejection of
each and every intervening level”. Id. Similarly, a sentencing
court need not “incant the specific language used in the
guidelines, or go through a ritualistic exercise in which it
mechanically discusses each criminal history category or offense
level it rejects en route to the category or offense level that
it selects.” Id. (internal quotation marks and citations
omitted). It is enough that the district court employed a well-
reasoned process or, stated otherwise, to have “extrapolated
from the structure and methodology of the Guidelines in
calibrating its upward departures.” United States v. Rivera–
Santana, 668 F.3d 95, 104 (4th Cir. 2012).
In this case, the district court’s determination that
an upward departure to 120 months imprisonment was compelled by
Blakeney’s criminal history and the § 3553 factors is well-
supported by the record. The district court considered the
defendant’s arguments and rejected them. Its explanations for
the sentence it imposed were sufficient to justify the extent of
the departure, as described above. See United States v.
Whorley, 550 F.3d 326, 339-42 (4th Cir. 2008) (upward departure
33% above advisory guidelines range amply supported by
defendant’s almost continuous pursuit of criminal conduct and
its increasing risk to the public); United States v. Myers, 589
13
F.3d 117, 126 (4th Cir. 2010) (upward departure based on
defendant’s criminal history, including unscored convictions,
and recidivism was reasonable); United States v. Evans, 526 F.3d
155, 158, 163-64, 166 (4th Cir. 2008) (upward departure
reflecting more than a 300% deviation from advisory guidelines
range supported by defendant’s extensive criminal history of
recidivism, lenient punishments, and substantial harm to
victims).
Even had the sentencing court failed to utilize a
proper analysis for the upward departure, any such error would
be harmless because the upward variance based on the § 3553(a)
factors justified the sentence imposed. See United States v.
Evans, 526 F.3d 155, 165 (4th Cir. 2008). 4 See also Rivera–
Santana, 668 F.3d at 104; United States v. Grubbs, 585 F.3d 793,
804 (4th Cir. 2009) (relying on district court’s discussion of
§ 3553(a) factors to affirm sentence as reasonable variance).
The district court expressly noted that it would have
“impose[d] the same sentence as a variance sentence” for the
reasons explained above, as well as for those noted during the
4
As this Court recently observed, “the practical effects of
applying either a departure or a variance are the same.”
Diosdado-Star, 630 F.3d at 365. See also Evans, 526 F.3d at164–65. “[T]he method of deviation from the Guidelines range—
whether by a departure or by varying—is irrelevant so long as at
least one rationale is justified and reasonable.” Diosdado-
Star, 630 F.3d at 365
14
sentencing hearing concerning section 3553(a). See Grubbs, 585
F.3d at 804 (concluding that variance sentence “is procedurally
reasonable [where] the district court adequately explain[s] its
sentence on alternative grounds” by reference to § 3553(a)
factors). Our review of the district court’s application of the
§ 3553(a) factors to Blakeney’s circumstances persuades us that
the variant sentence imposed upon him was not unreasonable. See
Grubbs, 585 F.3d at 804–05; Gall, 552 U.S. at 51 (in reviewing a
variance for reasonableness, an appellate court “must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance”);
United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007);
Evans, 526 F.3d at 160.
III.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
15
GREGORY, Circuit Judge, concurring in the judgment:
I concur in the result reached by the majority, as it
is the outcome militated by our precedent. I write separately,
however, to lament on how formalistic and hollow our review of
district court sentencing has become. While I recognize that
the district court remains in the best position “‘to decide the
issue in question,’” Koon v. United States, 518 U.S. 81, 98–99
(1996) (quoting Pierce v. Underwood, 487 U.S. 552, 559-560
(1988)), this discretion is not without limits, and must be
curbed to achieve the time-honored objectives of fair and
consistent sentencing. See United States v. Booker, 543 U.S.
220, 263–264 (2005) (noting that, despite tension with the need
to address individual circumstances, substantive review aims to
“avoid excessive sentencing disparities” and “iron out
sentencing differences”).
As I cautioned in United States v. Evans, 526 F.3d
155, 167 (4th Cir. 2008) (Gregory, J., concurring), “the words
‘abuse of discretion’ cannot be a legal incantation invoked by
appellate courts to dispel meaningful substantive review of a
district court’s sentence.” Yet, as recited by the majority, to
depart from the guidelines, district court judges “need only
‘set forth enough to satisfy the appellate court that it has
considered the parties’ arguments and has a reasoned basis’ for
its decision.” Ante at 7 (citing United States v. Diosdado-
16
Star, 630 F.3d 359, 364 (4th Cir. 2011)) (emphasis added).
Thus, district court judges can render our review moot by simply
providing a formulaic recitation of the 18 U.S.C. § 3553(a)
factors, as well as reasons for their departure -- even if, for
good reason, we explicitly disagree with them. With that said,
I agree that Blakeney’s remarkable criminal history justifies
the district court judge’s decision to depart in the instant
case; however, such an extensive departure from both the
sentencing guidelines and the government’s recommendation should
not go unobserved.
In the case at hand, the district court sentenced
Blakeney to ten years’ imprisonment -- despite the Government’s
request for only five years (which was already fourteen months
in excess of the sentencing range’s maximum). Arguably, the
district court’s reasoning could be extended to justify any
sentence up to the statutory maximum of twenty years. Such
uncertainty flies in the face of avoiding sentencing disparities
and the general proposition of fairness. As candidly indicated
by Blakeney’s counsel during oral argument, uncertainty
undermines an attorney’s role as advocate, as it encumbers the
ability to adequately prepare clients for sentencing, putting
the attorney at risk of claims for ineffective assistance of
counsel.
17
Overall, we cannot lose sight that appellate review of
sentencing is becoming “a mere formality, used by busy appellate
judges only to ensure that busy district judges say all the
right things when they explain how they have exercised” their
discretion. Booker, 543 U.S. at 313 (Scalia, J., dissenting).
Going forward, district courts must be wary of departure,
ensuring that non-guideline sentences are “sufficient, but not
greater than necessary” to satisfy the purposes of § 3553(a)(2).
In the same vein, our review must be given teeth to ensure that
the discretion of district court judges –- which is not absolute
–- remains subject to meaningful appellate review.
18