UNITED STATES of America, Plaintiff-Appellee v. Iralee E. FRENCH, Jr., also known as Frisco, Defendant-Appellant.
No. 12-2542.
United States Court of Appeals, Eighth Circuit.
Submitted: Feb. 12, 2013. Filed: July 9, 2013.
For the forgoing reasons, we deny the petition for review.
Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., David M. Ketchmark, Lajuana M. Counts, Asst. U.S. Attys., on the brief), for appellee.
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
RILEY, Chief Judge.
In a sixteen-day period, Iralee E. French, Jr. robbed the same Kansas City, Missouri, bank twice. French held a crying teller at gunpoint in the first robbery and shot a security guard during the second. A jury convicted French of conspiracy; bank robbery; using, carrying or brandishing a firearm during a crime of violence; attempted bank robbery; and use or discharge of a firearm during a crime of violence. The district court1 sentenced French to consecutive sentences totaling 1044 months (87 years) imprisonment. French appeals his conviction and
I. BACKGROUND
On February 9, 2006, at approximately 6:40 a.m., French, wearing a mask and armed with a Mossberg shotgun, and his partner, Thirplus Moose, confronted Chynetta Adams, а teller at a United Missouri Bank (UMB) branch in Kansas City, Missouri, as she arrived for work and exited her car in an underground parking garage. French and Moose led Adams to the bank at gunpoint. Adams let the robbers in the bank, but was unable to comply with their demand to open the vault.
After taking approximately $8,200 from Adams‘s teller drawer, French and Moose forced Adams back to the parking garage. French pointed his shotgun at Adams and repeatedly ordered her to get in the trunk of her car. Screaming and crying, Adams refused. When French and Moose gave up and fled in Adams‘s car, Adams returned to the bank and called the police.
On February 24, 2006, French and Moose returned to the same bank at approximately 6:30 a.m. to rob it again. As seventy-year-old security guard Dwight Mayhugh arrived in the UMB parking garage, French shot Mayhugh with a shotgun through the window of Mayhugh‘s vehicle from approximately eight to ten feet away. The shotgun blast struck Mayhugh in the neck, chest, and shoulder, shattering his right upper arm. The robbers then forced Mayhugh from his vehicle so he could let them in the bank. When Mayhugh proved unable to provide French and Moose access to any cash, they fоrced Mayhugh back to the garage and stole his vehicle.
Bleeding heavily from the shotgun wound, Mayhugh sought help at the convenience store across the street from the parking garage. Paramedics arrived and transported Mayhugh to Truman Medical Center where he underwent surgery. As Mayhugh was rushed into an operating room, an emergency physician who had examined Mayhugh briefly before surgery advised a police detective that he did not believe, at that point, that Mayhugh‘s injuries were immediately life threatening.
Mayhugh tragically died the next day from complications following surgery. Concluding complications from the shotgun wound caused Mayhugh‘s death, the medical examiner declared Mayhugh‘s death a homicide. French maintains improper medical treatment by a third-year resident at the hospital caused Mayhugh‘s death.
After Mayhugh died, French decided to “stay low” in St. Louis, Missouri, until things calmed down. French evaded arrest for almost two-and-a-half years. In August 2008, new leads in the investigation led law enforcement officers to focus on French. On August 27, 2008, officers arrested French in St. Louis for an outstanding warrant and traffic tickets. After advising Frenсh of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and obtaining a signed waiver, the officers interviewed French about the robberies and shooting. Hours later, French signed a formal statement, admitting he participated in both robberies and intentionally shot Mayhugh. Officers did not electronically record French‘s interview, even though recording equipment was available elsewhere in the building.
On September 23, 2008, a grand jury charged French in a nine-count indictment with conspiracy to commit bank robbery, in violation of
On October 16, 2009, French moved to suppress his statement to the police, arguing (1) his statement was involuntary; (2) his Miranda waiver was invalid; and (3) the officers’ failure to record his statement violated his due process rights. On January 7, 2010, after an evidentiary hearing, the magistrate judge recommended the district court deny French‘s motion to suppress. Adopting the magistrate judge‘s report and recommendation over French‘s objection, the district court denied French‘s motion.
After a five-day trial beginning on July 18, 2011, a jury convicted French of conspiracy (Count 1); armed bank robbery (Count 2); using, carrying, or brandishing a firearm during a crime of violence (Count 3); and the lesser included offenses of attempted bank robbery (Count 4); and using a firearm during a crime of violence (Count 5). The jury acquitted French of causing Mayhugh‘s death and the carjacking-related offenses (Counts 6, 7, 8, and 9).
On June 26, 2012, the district court held a sentencing hearing at which French, through counsel, argued the presentence investigation report (PSR) incorrectly applied United States Sentencing Guidelines (U.S.S.G. or Guidelines)
The district court, over the government‘s objection, received French‘s exhibits into evidence for purposes of argument as to a reasonable and appropriate sentence under
Relying on a mitigation video prepared for the court, French rеquested an aggregate sentence of forty-two years based on his young age at the time of the offense (eighteen) and “genuine remorse.” The district court denied French‘s request for leniency, speaking at length about French‘s selfishness and “callous disregard” for Adams and Mayhugh during the robberies—French was “willing to kill people and terrorize people for a few thousand dollars.” Emphasizing that French intentionally “shot to kill” Mayhugh, the district court concluded French was “a threat to society.” After considering the
A. Motion to Suppress
French argues “[t]he [district] court erred by admitting Mr. French‘s custodiаl statement into evidence when the police failed to memorialize it by video or audio recording despite ample resources and opportunity to do so, which violated his right to due process under the Fifth Amendment.” French‘s due process argument is foreclosed by our decision in United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005), in which we held the Constitution does not mandate electronically recording а defendant‘s custodial interrogation. See also Jenner v. Smith, 982 F.2d 329, 331 n. 2 (8th Cir. 1993) (noting “other circuits have held that incriminating statements are not inadmissible simply because the police failed to record or take notes of the conversations“). The district court properly denied French‘s motion to suppress.
B. Sentencing
1. Procedural Error
French contends the district court procedurally erred in imposing his sentencе by (1) disregarding the “parsimony principle,”2 (2) failing to consider the sentencing disparity between French and Moose, (3) concluding French “posed a threat to public safety,” and (4) applying the Guidelines cross reference for first-degree murder without addressing testimony that medical malpractice caused Mayhugh‘s death. “In reviewing a sentence for procedural error, we review the district court‘s factual findings for clear error and its application of the guidelines de novo.” United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). “‘Procedural error’ includes ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
French‘s claims of procedural error are unavailing. As noted by the government, French‘s assertion that the district court failed to “recognize the parsimony principle” is “typically associated with substantive error” and generally does not serve as an independent basis for procedural error. United States v. Luleff, 574 F.3d 566, 569 (8th Cir. 2009). In any event, to avoid procedural error, a sentencing court “need not specifically respond to every argument made by the defendant, or mechanically recite each
Having thoroughly reviewed the sentencing record in this case, we are satisfied the district court duly considered the evidence, French‘s arguments, and the
We also reject French‘s suggestion that the district court procedurally erred by basing its sentence on a fact French asserts is “clearly erroneous“—namely, that French posed “a threat to society.” French planned and executed two armed robberies in sixteen days, attempted to force a terrified teller into the trunk of her car at gunpoint to escape the first robbery, and during the second robbery, shot a security guard with a shotgun at close range before dragging him, bleeding, through the bank. The district court did not clearly err in finding French was a threat to society.
French‘s last procedural challenge is to the district court‘s application of the first-degree murder cross reference in the sentencing Guideline for robbery. Section
French contends the circumstances surrounding Mayhugh‘s death do not support the district court‘s application of
“The cross reference in
The district court, based upon a preponderance of the evidence—including testimony from the medical examiner that complications from the shotgun wound caused Mayhugh‘s death and a conflicting
C. Substantive Reasonableness
In the absence of significant procedural error, we review the substantive reasonableness of the sentence imposed for an abuse of discretion. Feemster, 572 F.3d at 461. “Substantive appellate review in sentencing cases is narrow and deferential; it will be the unusual case when we reverse a district court sentеnce—whether within, above, or below the applicable Guidelines range—as substantively unreasonable.” United States v. Kelley, 652 F.3d 915, 918 (8th Cir. 2011) (quoting Feemster, 572 F.3d at 464) (internal marks omitted).
“The decision to impose a consecutive sentence is also reviewed for reasonableness similar to an abuse of discretion standard.” Id. (quoting United States v. Benton, 627 F.3d 1051, 1055-56 (8th Cir. 2010)) (internal marks omitted). “A district court abuses its discretion when it fails to consider a relevant factor, gives significant weight tо an irrelevant or improper factor, or considers only appropriate factors but nevertheless commits a clear error of judgment by arriving at a sentence that lies outside the limited range of choice dictated by the facts of the case.” United States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007). “If the defendant‘s sentence is within the Guidelines range, then we may, but are not required to, apply a presumрtion of reasonableness.” Feemster, 572 F.3d at 461 (quoting Gall, 552 U.S. at 51) (internal marks omitted).
French asserts his sentence was “greater than necessary” to satisfy the sentencing goals of
As noted above, the district court carefully considered French‘s asserted grounds for mitigation and was even moved by French‘s mitigation evidence. Yet the district court determined the serious nature and “horrendous” circumstances of French‘s crimes and his willingness “to kill people and terrorize people for a few thousand dollars” not only outweighed the mitigating factors, but also warranted a severе sentence to deter such “callous” conduct and protect society from French. The district court further decided French demonstrated a lack of remorse and an unwillingness to take responsibility for his actions by evading capture for two-and-a-half years after Mayhugh‘s death. Although the consecutive sentences the district court imposed for French‘s various сrimes unquestionably result in a long prison term, this long term is not substantively unreasonable under the tragic and calloused circumstances of French‘s crimes.
Finding no error, we affirm French‘s conviction and sentence.