United States v. Demetrius Hardiman

United States Court of Appeals
For the Eighth Circuit
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No. 13-3705
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Demetrius Hardiman
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: August 22, 2014
Filed: August 27, 2014
[Unpublished]
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Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Demetrius Dre Hardiman pled guilty to disposing of a firearm to a felon,
violating 18 U.S.C. § 922(d)(1). The district court1 denied an adjustment for
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The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
acceptance of responsibility and gave him a within-Guidelines sentence. Hardiman
appeals the denial of an adjustment and the reasonableness of the sentence. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
In his plea agreement, Hardiman agreed to the following facts:
At about 1:15 a.m. on May 8, 2013, officers from the Cedar Rapids
Police Department encountered three individuals on 30th Street SE,
Cedar Rapids, Iowa, including defendant and his brother Ramius
Hardiman. When Ramius was asked what he had on his person,
defendant said “it’s mine.” When the officer asked “what is yours,”
Ramius thrust out his hip disclosing a bulge in his waistband. The
officer lifted Ramius’ shirt disclosing a cocked and loaded Taurus
PT99AF 9mm pistol . . . . Defendant later told officers that he stole the
gun about one year earlier and that he gave the firearm to his brother
Ramius earlier that night to carry for him. Defendant stated that they
brought the gun along that night for protection.
Later, he did not contest the following facts in the presentence investigation
report:
[D]efendant told the interviewing officer that “they would” walk around
the neighborhood checking vehicles, and if the doors were not locked,
they would enter the vehicle and steal items. During that same
interview, the defendant claimed ownership of the firearm and stated
that he had given the firearm to his brother, Ramius Hardiman, to hold
onto for him while they were “scoping out cars” because his hand was
in a cast at the time, making it difficult for him to carry the firearm. The
defendant stated that he brought the firearm along in case they were
confronted by a vehicle owner.
Hardiman knew his brother—on probation for involuntary
manslaughter—could not possess a firearm. During allocution at his sentencing
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hearing, Hardiman denied using the firearm for protection while stealing from cars.
He said:
I would like to say that during the time of where they’re saying I was
going to commit a crime, we were not going to search through cars.
They asked me, you know, what my intentions were on leaving the
house that night, and my intentions were to go search through cars. But
before I even stepped out of the door, my brother and my friend came
and approached me and—with another idea of going and hanging out
with some girls, so that’s what we were going to do. So I parked my car.
I did not feel like leaving my gun in the car; I took my gun with me. . .
. I handed my brother the gun so I could mess around with my friend.
We were about to—I can’t remember exactly what we were going to do,
but that’s what we were about to do when I handed it to my brother.
The district court interrupted the allocution, told Hardiman that his statement
was “contrary to a statement that you already gave to the police,” and allowed him to
explain. He replied:
What I told the police was what I just said. And I’ve tried to explain
that to my lawyer, that that—you know, what they said in the report
about what was going on that night, that that wasn’t true. I tried to say
that, but—(Whereupon, counsel conferred with the defendant).
The district court continued the hearing two weeks later. After hearing testimony, the
court found Hardiman’s statements untrue, denied an adjustment for acceptance of
responsibility, and sentenced him to 41 months, the top of the Guidelines range.
Hardiman believes that “the conduct discussed during [his] allocution did not pertain
to any portion of the offense of conviction,” so there was “no viable and legitimate
basis to strip [him] of his acceptance of responsibility.”
“A district court’s factual determination about whether the defendant accepted
responsibility is entitled to great deference, and [this court] will reverse it only if it
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is so clearly erroneous as to be without foundation.” United States v. Walker, 688
F.3d 416, 426 (8th Cir. 2012) (quoting United States v. Smith, 665 F.3d 951, 957 (8th
Cir. 2011)). “[T]he burden is on a defendant to show that he clearly demonstrated
acceptance of responsibility.” United States v. Vega, 676 F.3d 708, 723 (8th Cir.
2012) (quoting Smith, 665 F.3d at 957). A guilty plea is “significant evidence” of
acceptance, but “may be outweighed by conduct . . . that is inconsistent with such
acceptance of responsibility.” USSG §3E1.1, cmt. 3. “[A] defendant who falsely
denies . . . relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.” USSG §3E1.1, cmt. 1. Relevant
conduct includes “specific offense characteristics.” USSG §1B1.3(a). In the
“Specific Offense Characteristics” section of his Guidelines calculation, Hardiman
received four points for disposing of the firearm “in connection with” Third Degree
Burglary. See USSG §2K2.1(b)(6)(B). At allocution, he flatly denied the burglary.
The district court did not clearly err in denying an adjustment for acceptance of
responsibility.
Hardiman argues that his allocution is supported by statements from police.
In fact, these statements show that Hardiman lied. One officer testified that Hardiman
told her “they were walking through the area looking for open cars.” And, “if they
were confronted by the owner of the vehicles, that they would use [the gun].”
Another officer testified that Hardiman said they were “entering vehicles, and he had
the firearm with him just to scare off the owner if the owner would come out and
catch them inside the vehicle.” The officer thought that Hardiman “actually entered
vehicles.”
Hardiman contends that his within-Guidelines sentence is unreasonable. This
court reviews a sentence “for substantive reasonableness under an abuse-of-discretion
standard, according a rebuttable presumption of a reasonableness to a sentence within
the advisory range.” United States v. Struzik, 572 F.3d 484, 487 (8th Cir. 2009). The
district court was aware of Hardiman’s age, characteristics, and criminal history. It
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found that using a loaded firearm to help burglarize cars was a “serious offense,” and
imposed a sentence at the top of the Guidelines range. Hardiman fails to show that
this was an abuse of discretion. See United States v. Feemster, 572 F.3d 455, 464
(8th Cir. 2009) (en banc) (“[I]t will be the unusual case when we reverse a district
court sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.”) (quoting United States v. Gardellini, 545 F.3d 1089,
1090 (D.C. Cir. 2008)).
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The judgment is affirmed.
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