United States v. Tony Golden

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1133
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Tony Terrell Golden, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: September 20, 2010
Filed: September 29, 2010
___________
Before BYE, BEAM, and SMITH, Circuit Judges.
___________
PER CURIAM.
Tony Terrell Golden pleaded guilty to one count of conspiracy to distribute fifty
grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and
one count of possession of fifty grams or more of crack cocaine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The district court1
calculated an initial advisory Guidelines sentencing range of 135-168 months, based
upon Golden’s total offense level of 30 and category IV criminal history. The district
court ultimately imposed concurrent 180-month terms of imprisonment on the two
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
counts, which constituted a 12-month upward variance from the Guidelines range.
Golden appeals, arguing the district court abused its discretion by imposing an upward
variance and the 180-month sentence was unreasonable.
We generally review all sentences, including those that vary from the
Guidelines, for an abuse of discretion. United States v. Rutherford, 599 F.3d 817, 820
(8th Cir. 2010). Because Golden failed to object to the form of the sentence in the
district court, we review his allegations of procedural error for plain error. United
States v. Lewis, 593 F.3d 765, 772 (8th Cir. 2010). We may only reverse his sentence
if the court committed error, that is plain, that affects his substantial rights, and that
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Id. (citing United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc)).
First, we review for significant procedural error, including “‘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–including
an explanation for any deviation from the Guidelines range.’” United States v.
Johnson, 572 F.3d 449, 454 (8th Cir. 2009) (quoting Gall v. United States, 552 U.S.
38, 51 (2007)). We then review for substantive reasonableness under the deferential
abuse of discretion standard. Id.In this case, the district court based its upward variance, in large part, on
Golden’s prior Arkansas conviction for first-degree attempted murder in November
2000. The conviction resulted in a sentence of 120 months’ imprisonment, from
which Golden was subsequently paroled three times. In addition to his parole
revocations, Golden received disciplinary action and loss of good time while
incarcerated for failure to obey staff (sixteen times), assault (six times), unexcused
absence from work (five times), battery (three times), and a number of other
violations.
-2-
At sentencing, Golden objected to the factual allegations contained in the
Presentence Investigation Report (PSR) describing the basis of the Arkansas
conviction. The PSR noted that six individuals were involved in an altercation, during
which the victim pulled a gun from Golden’s pocket, but Golden “out muscled” the
victim and took the gun back. Golden fired the gun at the victim as the latter walked
backwards from Golden, resulting in hospitalization for the victim. Police officers
later recovered over forty grams of crack cocaine at the crime scene, but they never
located the firearm used by Golden.
Golden contends the district court erred in imposing an upward variance based
on the limited record available for the Arkansas conviction. Specifically, Golden
claims it was improper for the court to conclude both at sentencing and in a follow-up
sentencing memorandum that, “but for Golden’s poor aim,” he would likely be
serving a life sentence for the Arkansas conviction. Second, Golden contends it was
improper for the court to consider the sentence and the parole determination to have
been unfairly lenient, and therefore grounds for increased punishment. Finally,
Golden argues there was an insufficient factual basis in the record for the court to
conclude the incident underlying the conviction was “part of a crack cocaine deal gone
bad or in awfully close proximity to a crack cocaine deal.” Golden acknowledges
police located forty grams of crack cocaine at the scene of the crime, but he argues
there was no indication the drugs were involved in the shooting.
After careful review of the record, we reject Golden’s challenge to the district
court’s upward variance. The district court adequately explained its decision to vary
based on its lengthy discussion of the § 3553(a) factors, particularly the history and
characteristics of the defendant. See United States v. McKinzie, 557 F.3d 931, 933
(8th Cir. 2009) (holding the district court provided an adequate justification for its
upward variance based on its analysis of the § 3553(a) factors). The court discussed
the circumstances surrounding Golden’s first-degree attempted murder conviction, and
it concluded the conviction was supported by police reports describing the incident.
-3-
In addition, Golden’s counsel acknowledged at sentencing that the conviction itself
required Golden to maintain an intent to murder the victim, which clearly troubled the
district court, particularly when comparing the three criminal history points assessed
for the offense to other offenses such as felony check fraud that would also be
assessed the same number of points.
In addition, the court found a number of other aggravating factors, including
Golden’s lack of employment history, his multiple parole revocations, and his “pure
greed” in dealing crack cocaine for money, despite not being a user. Finally, the court
concluded its sentence was necessary to reflect the seriousness of the offense, to
promote respect for the law, to provide just punishment, to afford adequate deterrence,
and to protect the public from further crimes by the defendant. As a result, we reject
Golden’s claim of procedural error because the court expressly or impliedly
considered each of the § 3553(a) factors in explaining its decision to vary upward.
See United States v. Jarvis, 606 F.3d 552, 554 (8th Cir. 2010) (holding the district
court did not abuse its discretion where it considered the § 3553(a) factors and
adequately explained its upward variance). Further, any suggestion by Golden that
the district court was not entitled to vary upward based on criminal history because
that history was already accounted for in the Guidelines has been rejected by this court
on numerous occasions. See, e.g. United States v. Barrett, 552 F.3d 724, 727 (8th Cir.
2009); United States v. Jones, 509 F.3d 911, 914 (8th Cir. 2007).
Giving the district court due deference in its determination that the § 3553(a)
factors justify an upward variance, see Barrett, 552 F.3d at 727, we also conclude
Golden’s sentence is not substantively unreasonable because the 180-month sentence
was sufficient, but not greater than necessary, to accomplish the goals set forth in
§ 3553(a).
We affirm Golden’s sentence and the judgment of the district court.
______________________________
-4-