UNITED STATES of America, Appellee, v. Ashanti Nadjari WASHINGTON, Appellant. United States of America, Appellee, v. Robert Lloyd Williams, Appellant.
Nos. 06-3584, 06-3954.
United States Court of Appeals, Eighth Circuit.
January 28, 2008.
515 F.3d 861
Submitted: September 25, 2007.
Hersch Izek, on the brief, for appellant Williams.
Joseph T. Dixon, III, AUSA, argued and on the brief, Minneapolis, MN, for appellee USA.
Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
HANSEN, Circuit Judge.
Ashanti Nadjаri Washington (Washington) and Robert Lloyd Williams (Williams) each entered a plea of guilty to one count of attempted bank robbery in violation of
I.
On a tip that Washington might be involved in bank robberies, agents of the Federal Bureau of Investigation (FBI) began investigating, and on the morning of March 9, 2006, they observed Washington and Williams drive to the TCF Bank in Bloomington, Minnesota. Once there, Washington and Williams circled the building a few times and watched from a nearby parking lot as bank tellers opened the bank. The next morning, agents observed Washington do the same thing with Ashaunti Quantay Prowell. On March 14, 2006, all three men drove to the bank together in a stolen vehicle and parked in the bank parking lot. FBI agents acting as bank employees purported to open the bank. Williams and Prowell entered the bank with two black bags. When confronted by the FBI agents, they dropped their bags and ran. Agents arrested Prowell
Williams, Washington, and Prowell were named as codefendants in a one-count indictment charging them with attempted bank robbery, and all three men pleaded guilty to the charge. Washington and Williams appeal, arguing that thеir 72-month sentences are unreasonable.
II. Williams
Williams argues that his 72-month sentence represents an unreasonable upward departure or variance from the advisory sentencing range as calculated pursuant to the United States Sentencing Guidelines Manual (2006) (USSG or Guidelines). Pursuant to Paragraph 9 of his plea agreement, however, Williams waived the right to appeal his sentence “unless the sentence exceeds 151 months.” (Appellee‘s Add. at A-5.) In his plea agreement, he stipulated to an offense level and criminal history category which, аlthough not binding on the district court, would yield either an advisory Guidelines range of 151 to 188 months of imprisonment or an advisory Guidelines range of 63 to 78 months, depending on whether or not the district court ultimately determined that Williams was a career offender. Despite the factual dispute ovеr his career offender status, Williams agreed in Paragraph 9 to waive his right to appeal any sentence not exceeding 151 months, and his 72-month sentence is clearly within the scope of that agreement. See United States v. Andis, 333 F.3d 886, 890 (8th Cir.) (en banc) (noting Government has the burden “to demonstrate that a plеa agreement clearly and unambiguously waives a defendant‘s right to appeal“), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003). Williams does not assert on appeal that his plea was involuntarily or unknowingly entered, and in any event, such a claim would not be cognizable on direct appeal where he failed to present it to the district court in the first instance by a motion to withdraw his guilty plea. United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990). We therefore enforce the appeal waiver and dismiss Williams‘s appeal.
III. Washington
Washington‘s plea agreement contains no appeal waiver. In the agreement, Washington stipulatеd that he was subject to a Guidelines offense level of 19 and a criminal history category of III, resulting in an advisory Guidelines sentencing range of 37 to 46 months. The Government argued that a sentence above the advisory Guidelines range was necessary because the range did not adequately take into consideration the fact that Washington had committed the instant bank robbery only a few months following his release from prison on a 78-month sentence for a prior armed bank robbery conviction. The Government moved for an upward departure pursuant to USSG § 4A1.3 (Inadequacy of Criminal History Category), § 5H1.9 (Dependence upon Criminal Activity for a Livelihood), and § 5K2.0 (Other Grounds for Departure), or a post-Booker2 upward variance pursuant to the factors articulated in
The district court agreed with the stipulated Guidelines calculations but, without clearly identifying whether it was granting a Guidelines-based departure оr a post-Booker variance pursuant to § 3553(a), the district court imposed a 72-month sentence.3 Washington challenges the reasonableness
We review the sentence imposed for reasonableness, applying “the familiar abuse-of-discretion standard.” Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). See Booker, 543 U.S. at 261 (dirеcting appellate courts to determine whether a sentence is unreasonable in light of the factors set forth in
Within this framework, we first consider whether the district court committed any significant procedural error. The Court in Gall confirmed that, in reviewing a sentence, our “starting point and the initial benchmark,” like the district court‘s, is the calculation of the applicable Guidelines sentencing range. Id. at 596; see also United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A Guidelines sentence is arrived аt after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted. Haack, 403 F.3d at 1003. Washington stipulated to the Guidelines calculations that the district court adopted, resulting in an advisory sentencing range of 37 to 46 months, and there is no claim of error in those calculations. Consistent with Booker, 543 U.S. at 233-37, the district court did not treat the Guidelines as mandatory but, in fact, deviated upward from the Guidelines range to a 72-month sentence after considering that Washington had returned to the same crime within five months of his release from а prior sentence for bank robbery despite his unusually supportive family and his impending responsibility for a new child. In identifying these aggravating circumstances and imposing a sentence above the range, the district court referenced both a Guidelines section and § 3553(a), describing its deviation from the advisory sentencing range “as a variance or upward departure.” (Sent. Tr. at 20.) Thus, while the factual basis for the deviation is clear, the legal basis is not. We
As noted above, the district court described its sentence as a “variance or upward departure” from the Guidelines range and drew no distinctions between the two terms. (Sent. Tr. at 20.) The district court at one point did reference a traditional Guidelines departure factor (
Washington argues that the facts on which the district court relied for the variance all relate to his prior armed bank robbery conviction аnd were therefore sufficiently taken into account in his Guidelines criminal history calculation. Washington‘s criminal history score did take into account some of the circumstances surrounding his prior armed bank robbery conviction. The prior conviction itself would have placed Washington in Criminal History Category II. Further criminal history add-ons accounted for additional circumstances, particularly the fact that he committed the instant offense while he was on supervised release for the prior offense (two additional points) and that he committеd the instant offense less than two years following his release from custody on the prior offense (one additional point). These additional criminal history points moved Washington into Criminal History Category III, which effectively increased the upper end of his advisory Guidelines range by a total of five months over the range that would have been applicable to a Category II offender. Washington argues that because all of his criminal history points were related to the prior armed bank robbery conviction, this higher Guidelines sentencing range already encompasses the reasons articulated by the district court to justify the non-Guidelines variance sentence. We respectfully disagree.
The district court acknowledged that the Guidelines range already accounted for the prior bank robbery “to an extent,” but explicitly concluded that the additional five months resulting from the criminal history calculations alone did not adequately reflect the seriousness of Washington‘s conduct.
We next consider the substantive reasonableness оf the sentence. See id. The 26-month (5-offense-level) upward variance in this case from what Gall characterizes as “the initial benchmark,” 128 S.Ct. at 596, is neither minor nor insubstantial. Even under Gall, “a major [variance] should be supported by a more significant justification than a minor one.” Id. at 597. The district court must make an individualized assessment based on the facts presented, and upon determining that a non-Guidelines sentence is warranted, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. Viewing, with due deference, the district court‘s decision for an abuse of disсretion, we note that the district court stressed the serious nature of Washington returning, less than five months from his release from prison, to virtually the same criminal conduct for which he had just served a 78-month sentence, despite his responsibility to his unborn child and the supportive family he enjoyеd. (Sent. Tr. at 18-20.) The district court, having the benefit of “access to, and greater familiarity with, the individual case and the individual defendant,” Gall, 128 S.Ct. at 597 (internal marks omitted), explained that the nature of Washington‘s crime was very serious in light of these circumstances. Giving due deference to the reasoned decision of the district court, we cannot say that the district court failed to consider a relevant factor, gave significant weight to an improper or irrelevant factor, or committed a clear error of judgment in relying on these facts to support the extent of the variance in this case. See Haack, 403 F.3d at 1004 (reciting the abuse-of-discretion standard of review as articulated in Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984)). Accordingly, the extent of the variance is reasonable, and we affirm the sentence.
IV.
We enforce the appeal waiver against Williams and accordingly, dismiss Williams‘s аppeal. We find no abuse of discretion in the district court‘s imposition of a 72-month non-Guidelines sentence in Washington‘s case, and accordingly, we affirm the judgment of the district court.