United States v. Daimen Purvis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAIMEN DEMALL PURVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:10-cr-00027-FL-1)
Submitted: June 14, 2011 Decided: July 26, 2011
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Seth M. Wood, 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Unpublished opinions are not binding precedent in this circuit.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:
Daimen Demall Purvis pled guilty to being a felon in
possession of a firearm, see 18 U.S.C. § 922(g)(1), and was
sentenced to 72 months’ imprisonment. On appeal, Purvis asserts
that the sentence was procedurally and substantively
unreasonable. Finding no error, we affirm.
I.
In December 2009, officers from the Pitt County
Sheriff’s Department responded to a 911 call of shots being
fired in the vicinity of Purvis’ home. When they arrived, the
officers found Purvis and Marketse Barrett fighting in the
street. Purvis suspected that Barrett was having an affair with
his wife and had earlier lured Barrett to the home by sending
Barrett a text message from his wife’s cellular telephone asking
Barrett to come over. When Barrett arrived, Purvis opened the
door and pointed a gun at him. Barrett turned and fled. As
Barrett was running, he heard a gunshot behind him. Although
Barrett was not shot, he fell to the ground, where Purvis jumped
on top of him. The officers found a loaded firearm in the
street. The officers also found ammunition, a small quantity of
marijuana, scales, and drug paraphernalia in Purvis’ home.
A federal grand jury returned an indictment charging
Purvis with being a felon in possession of a firearm, in
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violation of 18 U.S.C. § 922(g)(1). Purvis thereafter pled
guilty pursuant to an agreement with the government, preserving
his right to appeal a sentence in excess of the advisory
Guidelines range established at sentencing.
A presentence report (“PSR”) was prepared and included
Purvis’ family history, education, health, employment history,
and criminal history. The latter included numerous convictions,
beginning in 1998 when Purvis was 16 years old, and continuing
through 2009, when Purvis was 26 years old. The convictions
included, inter alia, (1) breaking and entering a motor vehicle
(18 counts); (2) breaking and entering, larceny (3 counts); (3)
second degree burglary; (4) assault on a government official (3
counts), which involved his striking two police officers and
pushing a third; (5) assault inflicting serious injury, arising
out of the defendant’s physical assault upon his wife; (6)
possession of drug paraphernalia; and (7) resisting a public
officer and communicating threats. Purvis’ total offense level,
which reflected a three-point reduction for acceptance of
responsibility, was 17, and his criminal history category was
IV. The Guidelines range was 37 to 46 months’ imprisonment.
After adopting the findings in the PSR and hearing
from counsel and Purvis, the district court varied upward from
the Guidelines range and sentenced Purvis to 72 months’
imprisonment.
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II.
We review a sentence for reasonableness, applying an
abuse of discretion standard. See Gall v. United States, 552
U.S. 38, 46, 51 (2007). Our reasonableness review involves both
procedural and substantive elements. Procedural reasonableness
concerns the method by which the district court decided a
defendant’s sentence. If there is no procedural error, we “then
consider the substantive reasonableness of the sentence
imposed.” Id.A.
Purvis contends that his sentence is procedurally
unreasonable because the district court failed to adequately
address his arguments that his history and characteristics
called for a within-Guidelines sentence and failed to adequately
explain the deviation from the Guidelines range.
In determining whether a sentence is procedurally
reasonable, 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.
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Id. When imposing a sentence, a district court must first
calculate the proper sentencing range prescribed by the
Guidelines. See id. at 49. The court must then consider that
range in light of the parties’ arguments regarding the
appropriate sentence and the factors set out in § 3553(a). See
id. The court “must make an individualized assessment based on
the facts presented,” id. at 50; see also United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009), and provide an
explanation for the sentence it imposes, see 18 U.S.C. §
3553(c). “The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007). If a party presents legitimate reasons for imposing
a sentence outside the applicable Guidelines range, the
sentencing judge “will normally go further and explain why he
has rejected those arguments.” Id. at 357; see also Carter, 564
F.3d at 328.
The appropriate breadth and depth of a sentencing
court’s exposition depends upon the circumstances. See Rita,
551 U.S. at 356-57. A sentence within the Guidelines range
generally requires a less extensive justification than a
sentence that departs or varies from the Guidelines. See United
States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009). If the
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court determines that a sentence outside the applicable
sentencing range is appropriate, “the court’s stated reasons . .
. must be sufficiently compelling to support the degree of the
variance.” United States v. Lewis, 606 F.3d 193, 201 (4th Cir.
2010) (internal quotation marks omitted). “[A] major departure
should be supported by a more significant justification than a
minor one.” Gall, 552 U.S. at 50.
At the outset of Purvis’ sentencing hearing, the
district court advised the parties that it had reviewed and
considered Purvis’ family history, education, health, employment
history, and financial circumstances. The court also noted
Purvis’ extensive criminal history, which began at age 16 and
continued for more than a decade. Observing that Purvis was
fortunate not to have caused bloodshed during the altercation at
issue, the court alerted counsel upfront of its concerns about a
within-Guidelines sentence. Specifically, the court advised
defense counsel that Purvis appeared to be a “very dangerous”
person, and asked counsel to give the court “some reason to
think that when Mr. Purvis gets out of prison he is going to be
a law-abiding citizen and a productive one, and Mr. Purvis is
going to stop this life of crime and violence.” J.A. 45.
Purvis’ counsel argued that a within-Guidelines
sentence would be sufficient because, despite Purvis’ criminal
history and the circumstances of the offense of conviction, he
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had held a steady job and supported his family. Counsel also
pointed out Purvis’ struggles with mental illness and substance
abuse, and requested that Purvis receive treatment in prison.
Purvis also read the court a prepared letter expressing remorse
and indicating his desire and plan to rehabilitate in prison.
At the conclusion of the arguments, the district court
adopted the findings set forth in the PSR and considered the
Guidelines range, but found that the Guidelines range did not
“promote a sentence that is compliant with [§ 3553].” J.A. 53.
Specifically, the district court found that the Guidelines range
was not “one that will deter the type of conduct that will
promote respect for the law” or “protect the public from the
defendant.” J.A. 53. The district court also found that the
Guidelines range did not “consider fully the history and
characteristics of this defendant or the circumstances of the
offense.” J.A. 53-54. In further support of these
determinations, the district court also articulated several
additional, specific findings and observations. The district
court found that Purvis’ case presented “a particularly violent,
particularly brutal demonstration of felon in possession of a
firearm. A felon who lured his nemesis to the residence in a
very carefully hatched-out plan, and opened the door with a
loaded weapon, and shot at his nemesis.” J.A. 54. The district
court also found that Purvis “is someone who resorts to
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assaultive behavior, who demonstrates no respect for the law,
even in the very vivid example of going berserk on police
officers.” J.A. 54. And the district court found that Purvis
“is someone who can’t follow directions or submit to
supervision, as demonstrated by the myriad of [prior] probation
violations.” J.A. 54.
In sum, the district court considered and explained
that a deviation from the Guidelines was justified by “the
nature and circumstances of the offense and the history and
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), “the
need for the sentence imposed . . . to reflect the seriousness
of the offense, to promote respect for the law, and to provide
just punishment for the offense,” id. § 3553(a)(2)(A), “the need
. . . to afford adequate deterrence to criminal conduct,” id. §
3553(a)(2)(B), and “the need . . . to protect the public from
further crimes of the defendant,” id. § 3553(a)(2)(C). The
district court also advised Purvis that he would be recommended
for substance-abuse treatment, vocational training, and mental
health assistance while in prison. See 18 U.S.C. §
3553(a)(2)(D).
Under the circumstances, we are satisfied that the
district court carefully considered the parties’ arguments,
conducted an individualized assessment of Purvis’ circumstances,
and adequately explained its decision to impose a higher
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sentence pursuant to the § 3553(a) factors. Accordingly, we
find the sentence to be procedurally reasonable. *
B.
Purvis next argues that the sentence was substantively
unreasonable because the § 3553(a) factors, taken as a whole,
did not support the variance.
When considering the substantive reasonableness of a
sentence, we consider “whether the District [Court] abused [its]
discretion in determining that the § 3553(a) factors supported
[the sentence] and justified a substantial deviation from the
Guidelines range.” Gall, 522 U.S. at 56. In doing so, we must
“take into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id. at
51. We may not apply a presumption of unreasonableness to an
outside-Guidelines sentence. See id. Rather, we “may consider
the extent of the deviation, but must give due deference to the
district court's decision that the § 3553(a) factors, on a
whole, justify the extent of the variance. The fact that [we]
might reasonably have concluded that a different sentence was
*
To the extent Purvis pursues an argument that the district
court should have first considered a departure under U.S.S.G. §
5K2.0 and U.S.S.G. § 4A1.3, he acknowledges that we rejected
such an argument in United States v. Diosdado-Star, 630 F.3d
359, 366 (4th Cir. 2011).
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appropriate is insufficient to justify reversal of the district
court.” Id. “This deference is due in part because ‘[t]he
sentencing judge is in a superior position to find facts and
judge their import [and] [t]he judge sees and hears the
evidence, makes credibility determinations, has full knowledge
of the facts and gains insights not conveyed by the record.’”
United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir.
2011) (quoting Gall, 522 U.S. at 51); see also Rita, 551 U.S. at357–58 (explaining that the district court also “has access to,
and greater familiarity with, the individual case and the
individual defendant before [the court] than the Commission or
the appeals court”). Although major departures from the
Guidelines should be supported by a more significant
justification than minor ones, extraordinary circumstances are
not necessary to justify an outside-Guidelines sentence. See
Diosdado-Star, 630 F.3d at 366.
We cannot say that the district court abused its
discretion in imposing an upward variance of 26 months’
imprisonment. As noted by the district court, the Guidelines
range for Purvis’ conviction for being a felon in possession of
a firearm did not fully reflect the violent circumstances of the
offense of conviction, particularly that Purvis lured his victim
to his home, pointed a loaded firearm at him, and discharged the
firearm while the victim was attempting to flee. Also, the
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incident was the latest in an extensive list of prior
convictions spanning more than a decade -- most notably Purvis’
conviction for assault on three police officers in January 2003,
when he was 20 years old; his conviction for assault on his wife
inflicting serious injury in December 2003, when he was 21 years
old; and his conviction for resisting a police officer and
communicating threats in August 2007, when he was 25 years old.
Under the circumstances, we “give[ ] due deference to the
District Court's reasoned and reasonable decision that the §
3553(a) factors, on the whole, justified the sentence” of 72
months' imprisonment. Gall, 552 U.S. at 59–60.
III.
For the foregoing reasons, we conclude that Purvis’
sentence was procedurally and substantively reasonable and that
the district court did not abuse its discretion in imposing the
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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