United States v. Orenthal Dendy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORENTHAL JAMES DENDY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:09-cr-00565-HFF-1)
Argued: May 10, 2011 Decided: July 14, 2011
Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Wilson Plowden, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, South Carolina, for Appellant. William
Jacob Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, Columbia, South Carolina, A.
Lance Crick, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Orenthal James Dendy appeals his sentence for possession
with intent to distribute and distribution of crack cocaine and
for use of a firearm in furtherance of a drug trafficking crime.
He argues that the district court inadequately explained its
reasons for imposing a sentence within the guidelines range and
rejecting his arguments for a lesser sentence. He also contends
that his sentencing hearing was tainted by a statement the
district court made regarding our guidelines precedent. Finding
no error, we affirm.
I.
On several occasions in 2008, Dendy sold crack cocaine to a
confidential informant working for the Simpsonville, South
Carolina police department. On the basis of these transactions,
the police obtained and executed a search warrant for Dendy’s
residence. The search revealed crack cocaine, drug
paraphernalia, a firearm, and ammunition. A federal grand jury
returned a five-count indictment against Dendy; he subsequently
pleaded guilty to Counts One and Five. Count One charged Dendy
with possessing with intent to distribute and distributing
cocaine base (crack cocaine), in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). Count Five charged Dendy with
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knowingly using and carrying a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
The United States Probation Office prepared a presentence
report (“PSR”), which calculated Dendy’s sentence under the
guidelines as a range of 21 to 27 months’ imprisonment for Count
One, based upon a total offense level of 15 and a criminal
history category of II, plus a mandatory consecutive 60 months’
imprisonment for Count Five. The PSR also described Dendy’s
personal characteristics in some detail. The description
included specific information about Dendy’s family
relationships; physical condition; mental health, including
details about his mental illness diagnosis, medications, and
treatment; substance abuse history; vocational and nonvocational
education; employment record; and financial circumstances.
At sentencing, the district court recited the
recommendations of the PSR regarding the applicable guidelines
range. After verifying that neither party objected to the
contents of the PSR, the district court adopted the factual
findings of the PSR as a basis to evaluate the sentencing
factors of 18 U.S.C. § 3553(a). Both the government and defense
counsel presented sentencing arguments. The government argued
for a within-guidelines sentence, while counsel for Dendy asked
the district court to impose a total sentence of 60 months’
imprisonment. Because the mandatory minimum for Count Five
3
required a sentence of 60 months, Dendy’s request in reality
constituted a request for a downward variance (to zero) from the
21 to 27 months guideline range for Count One.
In support of this request, defense counsel pointed to
Dendy’s relatively light criminal history (as already reflected
in the PSR) and asked the court to consider, as grounds for the
variance, the sentencing disparity between crack cocaine and
powder cocaine, Dendy’s mental illness, and Dendy’s inability to
maintain employment as a result of that illness. Dendy’s
counsel argued that Dendy was selling crack not to support his
own use, but rather to earn money to help offset his parents’
support of him during his unemployment. Based upon these
considerations, defense counsel argued that a sentence of 60
months would accomplish the goals of sentencing as expressed in
the § 3553(a) factors. Thereafter, both Dendy and his father
made oral statements in which they underscored the hardships
associated with Dendy’s mental illness, particularly Dendy’s
difficulty keeping a job and his resulting financial troubles.
After hearing the respective arguments by the parties, the
district court explicitly rejected Dendy’s request for a
downward variance based upon the sentencing disparity between
crack cocaine and powder cocaine. The district court reasoned
that in its view, crack is a more dangerous drug than powder
cocaine. With regard to Dendy’s remaining arguments, the
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district court explicitly agreed with the government’s analysis
of the relevant § 3553(a) factors. The district court sentenced
Dendy to 21 months for Count One, which was the bottom of the
guidelines range, plus the mandatory consecutive sentence of 60
months for Count Five, for a total sentence of 81 months.
II.
A distinct sentencing framework has emerged from the
Supreme Court’s sentencing decisions since United States v.
Booker, 543 U.S. 220 (2005), the decision in which the Court
rendered the once-mandatory federal sentencing guidelines
advisory. See, e.g., Gall v. United States, 552 U.S. 38, 46-60
(2007); Rita v. United States, 551 U.S. 338, 347-60 (2007). The
framework imposes specific procedural requirements upon district
courts for the sentencing of criminal defendants. A sentencing
court must begin its determination by correctly calculating the
defendant’s sentencing range under the guidelines, which is the
proper “starting point and the initial benchmark” for the
court’s decision. Gall, 552 U.S. at 49. Thereafter, the court
must allow the parties to argue for whatever sentence they deem
appropriate and consider their arguments in light of the
sentencing factors set forth in § 3553 (a). See id. at 49-50.
The court must then choose a sentence based on an
“individualized assessment” of the facts presented. Id. at 50.
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After selecting the appropriate sentence, the court must
“adequately explain the chosen sentence.” Id. See also 18
U.S.C. § 3553(c) (requiring sentencing courts to “state in open
court” their reasons for imposing a particular sentence). Apart
from these procedural requirements, a district court enjoys
“substantial discretion” in selecting a sentence. United States
v. Raby, 575 F.3d 376, 381 (4th Cir. 2009).
Under this sentencing framework, we review sentencing
determinations for reasonableness under an abuse-of-discretion
standard. Gall, 552 U.S. at 51. Our reasonableness review
involves both procedural and substantive elements. Procedural
reasonableness—the sole issue here—concerns the method by which
the district court decided the defendant’s sentence; a
sentencing determination that does not conform to the procedural
requirements outlined above is procedurally unreasonable.
Accordingly, our review requires us to 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 § 3553(a) factors,
selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.
Id. If we find that the district court committed such
procedural error, and thus abused its discretion, we reverse
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unless we determine that the error was harmless. * See United
States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010); United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
III.
Dendy first contends that the district court committed
procedural error by failing to adequately explain the within-
guidelines sentence it imposed upon him. We disagree.
When imposing a sentence, a district court “must make an
individualized assessment based on the facts presented.” Gall,
552 U.S. at 50; see also Lynn, 592 F.3d at 576; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). The district court
must also 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, 551 U.S. at 356.
“This not only ‘allow[s] for meaningful appellate review’ but it
also ‘promote[s] the perception of fair sentencing.’” Carter,
564 F.3d at 328 (quoting Gall, 552 U.S. at 50). Furthermore, if
*
Because Dendy argued at sentencing that the § 3553(a)
factors warranted a sentence below the applicable guidelines
range, his claim of procedural error is properly preserved for
appellate review. See United States v. Lynn, 592 F.3d 572, 578-
79 (4th Cir. 2010).
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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.” Rita, 551 U.S. at 357; see Carter, 564 F.3d at 328.
Although an adequate explanation must accompany every
sentence, the explanation may be brief. See Rita, 551 U.S. at
356. The appropriate breadth and depth of a sentencing court’s
exposition depends upon the circumstances. See id. 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). “This is because guidelines sentences
themselves are in many ways tailored to the individual and
reflect approximately two decades of close attention to federal
sentencing policy.” Id. (internal quotation marks omitted).
Here, it is undisputed that the district court correctly
calculated Dendy’s sentencing range under the guidelines,
allowed both parties to present arguments for the sentences they
thought appropriate, and also heard personal statements by the
defendant and his father in support of their request for a
below-guidelines sentence. The record also reflects that the
district court “considered the parties’ arguments” in light of
the sentencing factors of § 3553(a) and had a “reasoned basis”
for its decision to reject Dendy’s arguments for a below-
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guidelines sentence in favor of the guidelines sentence
requested by the government. Rita, 551 U.S. at 356. The
district court adopted the undisputed factual findings of the
PSR as a basis to evaluate the § 3553(a) factors, as well as the
conclusions of the PSR and the government’s sentencing
recommendation as to the effect of those factors. In sum, the
district court made an “individualized assessment based on the
facts presented.” Gall, 552 U.S. at 50.
We also hold that the district court’s explanation for
Dendy’s within-guidelines sentence was adequate and reflected
this individualized assessment of Dendy’s circumstances. At the
sentencing hearing, the district court first explicitly
acknowledged Dendy’s argument regarding the sentencing disparity
between crack and powder cocaine and dismissed it on the ground
that in the court’s view, crack is more dangerous than powder.
The district court also heard and considered the personal
statements of Dendy and his father. However, the district court
agreed with the government’s position regarding the
appropriateness of a within-guidelines sentence. While the
district court did not explicitly address or reject each issue
raised by Dendy, the court’s statements during sentencing make
it clear that the court considered Dendy’s individualized
circumstances when imposing the sentence. Given the nature of
the arguments raised at sentencing, we conclude that the
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district court adequately explained the basis for its within-
guidelines sentence. See Johnson, 587 F.3d at 639 (noting
propriety of lesser justification where guidelines sentence
already reflects individualized circumstances); see also United
States v. Wood, 587 F.3d 882, 884 (8th Cir. 2009) (holding, in
the context of a within-guidelines sentence, that “not every
reasonable argument advanced by a defendant requires a specific
rejoinder by the judge” (internal quotation marks omitted)).
For the foregoing reasons, we hold that the district
court’s explanation, though not lengthy, was sufficiently
individualized and adequate to justify the within-guidelines
sentence imposed. It is clear that the district court heard and
considered the respective arguments and had a reasoned basis for
rejecting Dendy’s request for a downward variance and instead
imposing a sentence at the bottom of the guidelines range.
Accordingly, we find no procedural error attributable to the
district court’s explanation of Dendy’s sentence.
IV.
Dendy next argues that his sentencing proceeding was
tainted by the district court’s statement: “[F]rankly the Fourth
Circuit is pushing us back into the guidelines. They really
are.” J.A. 66. Specifically, Dendy contends that this
statement “raises the serious possibility that the district
10
court felt it was being pressured to impose a guidelines
sentence.” Br. of Appellant at 11. We disagree.
At the outset, we recognize that it is procedurally
unreasonable for a sentencing court to treat the guidelines as
mandatory. See United States v. Mendoza-Mendoza, 597 F.3d 212,
216 (4th Cir. 2010). Likewise, it is procedural error for a
district court to presume that a sentence within the guidelines
is reasonable or appropriate in a given case. Nelson v. United
States, 129 S. Ct. 890, 892 (2009) (per curiam); Rita, 551 U.S.
at 351; Raby, 575 F.3d at 381. We refer to a presumption in
favor of a guidelines sentence as a “Rita presumption,” after
the Supreme Court decision that rejected the use of such
presumptions by sentencing courts. Rita, 551 U.S. at 351
(holding that “the sentencing court does not enjoy the benefit
of a legal presumption that the Guidelines sentence should
apply”); Mendoza-Mendoza, 597 F.3d at 217 (referring to any
presumption in favor of a Guidelines sentence as a “Rita
presumption”).
A sentencing court does not apply a Rita presumption merely
by using the guidelines to orient its thinking or by selecting a
guidelines sentence. See Mendoza-Mendoza, 597 F.3d at 217.
Furthermore, there is no impermissible Rita presumption if the
appellate court concludes that the sentencing court did not
regard the advisory guidelines range as presumptively
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reasonable, “even if stray language in the sentencing court’s
discussion, standing alone, could give the impression that a
presumption was used.” Id. at 218. Although a sentencing court
should avoid the use of words like “presumption” and
“obligation” with respect to the guidelines, it is “what a court
actually did” that is important on appeal, “not whether a remark
here or there, removed from the larger context in which it was
made, is on some list of forbidden phrases.” Id. (internal
quotation marks omitted). A sentencing court that “did what it
was supposed to do [by] hearing out both sides and making an
individualized assessment in light of § 3553(a)” should not be
vulnerable to claims that it applied a Rita presumption. Id.
Here, when we consider the district court’s statement in
its full context, it is clear that the district court treated
the guidelines neither as mandatory nor as presumptively
reasonable. Immediately following the remark in question, the
district court explicitly referred to the sentencing guidelines
as “advisory” rather than mandatory. Moreover, the fact that
the district court adopted the government’s argument as to the
effect of the § 3553(a) factors, after acknowledging its own
consideration of those factors, shows the court’s awareness of
the latitude it possessed to determine an appropriate sentence.
The district court never spoke in terms of a presumption or
words of an equivalent effect. We accordingly decline Dendy’s
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invitation to read a Rita presumption into the district court’s
ambiguous offhand remark. The district court’s use of the word
“pushing” does not indicate that the district court believed
that it was obligated to impose a guidelines sentence. Cf. id.
at 219 (holding that district court accorded guidelines an
impermissible quasi-mandatory effect with its statement that it
was “obligated to impose a Guidelines sentence” notwithstanding
its disagreement with that sentence); Raby, 575 F.3d at 377
(holding that district court improperly presumed reasonableness
of a within-guidelines sentence based on its comments that
“Guidelines sentences ‘are always reasonable and are presumed
always reasonable’” and that imposing a outside-guidelines
sentence was “‘extremely difficult, if not impossible’”).
Placing the district court’s comment in the context here, we do
not understand the district court to have intended the word
“pushing” to confer a quasi-mandatory effect on the guidelines,
especially when the court described the guidelines as “advisory”
just 15 words later.
In light of these considerations, we view the district
court’s statement as a stray remark that ultimately had no
bearing on the sentencing decision or its procedural
reasonableness. We therefore conclude that the district court’s
statement did not constitute procedural error.
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V.
For the foregoing reasons, we conclude that Dendy’s
sentence was procedurally reasonable. We therefore affirm.
AFFIRMED
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