UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LEMONT JERRONE WEBB, a/k/a L. Dawg, a/k/a Mont, Defendant – Appellant.
No. 18-4446
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: July 13, 2020
PUBLISHED. Submitted: June 1, 2020. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-cr-00172-BO-1)
Before GREGORY, Chief Judge, WYNN and HARRIS, Circuit Judges.
Laura E. Beaver, THE BEAVER LAW FIRM, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
A jury convicted appellant Lemont Jerrone Webb of multiple criminal offenses related to drug trafficking and money laundering, and the district court sentenced him to life imprisonment. On appeal, Webb raises several challenges to his conviction, which we find unavailing. We do, however, agree with Webb that his sentence is procedurally unreasonable, because the district court failed to address his non-frivolous mitigating arguments against a life sentence. Accordingly, we affirm Webb‘s conviction but vacate his sentence and remand to the district court for resentencing.
I.
Lemont Jerrone Webb and several other defendants were indicted on multiple drug-trafficking and money-laundering counts. Specifically, Webb was charged in a superseding indictment with conspiracy to distribute and possess with the intent to distribute cocaine and crack cocaine, in violation of
With respect to money laundering, the government introduced testimony related to cash purchases by Webb and Myles of numerous parcels of real property and automobiles. The government‘s evidence showed that some of the property in question, though in Myles‘s name, had been paid for in cash by Webb. In his defense, Webb called several witnesses to show that he had established a lawful towing business in 2013, from which he derived legitimate income.
The jury convicted Webb of drug conspiracy, possession with intent to distribute crack cocaine, money-laundering conspiracy, and some but not all of the substantive money-laundering counts with which he was charged. The district court sentenced Webb to life imprisonment, and Webb timely appealed.
On appeal, Webb raises three challenges to his conviction, and also argues that his life sentence is procedurally and substantively unreasonable. We begin with Webb‘s arguments concerning his conviction and turn next to Webb‘s sentence, providing additional factual context as necessary.
A.
1.
In his first challenge to his conviction, Webb argues that the district court erred in admitting evidence of his prior state-court convictions for drug-related offenses. Specifically, the district court allowed the government to introduce at trial – over Webb‘s objection – evidence that Webb pleaded guilty in state court in 2012 to charges that in 2009 and 2010, he sold cocaine, possessed cocaine with the intent to distribute it, and maintained a dwelling for the purpose of selling cocaine. According to Webb, that evidence was not admissible under
”
This is just such a case. The state convictions at issue were for possessing and intending to distribute cocaine in the same place and during the same time period as the drug-trafficking conspiracy – a conspiracy to distribute cocaine as well as crack cocaine – charged in the federal indictment. As we recently held in United States v. Bush, a district court does not abuse its discretion by treating such convictions as intrinsic to a federal drug conspiracy charge under
2.
Webb‘s second challenge to his conviction concerns a statement by the prosecutor during closing arguments to the jury. At trial, Janice Smith, a cooperating witness who was part of the drug conspiracy, testified about overhearing an argument between Webb and Myles over which of them owned the property on which a trailer sat. The argument broke out in the trailer after Smith – at Webb‘s direction – attempted to prevent Myles from bringing a woman into a back room already occupied by Webb and a different woman. In recounting, during his closing argument, Smith‘s testimony about the dispute between Webb and Myles, the prosecutor elaborated: “Now, [Webb] was actually in the back room with another woman – not his wife, . . . [who is] . . . in the back of the court[room] . . . .” J.A. 1051. Although Webb did not object at the time, he now argues on appeal that the government improperly accused him of sexual infidelity and thus denied him a fair trial. We find no reversible error.
Webb cannot meet that standard here. We may assume that the prosecutor‘s statement was improper, and plainly so. The government insists that the prosecutor‘s reference to Webb‘s alleged marital infidelity was necessary to corroborate Smith‘s account of the dispute between Webb and his father, but that is a hard argument to follow, particularly because Smith‘s testimony did not identify the woman on the scene with Webb. And the government offers no theory at all for why it would have been appropriate to further shame Webb by pointing out, to the jury, that his wife was present in the courtroom. There is a difference between justifiably “hard blows” and improper “foul” ones, Berger v. United States, 295 U.S. 78, 88 (1935), and this statement seems clearly to cross the line.
3.
Webb‘s final argument against his conviction arises under the Double Jeopardy Clause of the
As Webb effectively concedes, however, his federal prosecution would be permissible under the Double Jeopardy Clause‘s “dual-sovereignty” doctrine, which allows the federal government to bring federal charges even when a state already has prosecuted a defendant for the same conduct. See Gamble, 139 S. Ct. at 1964. At the time that Webb
B.
We turn now to Webb‘s life sentence, which Webb challenges as both procedurally and substantively unreasonable. We begin, as we must, with procedural reasonableness, see Gall v. United States, 552 U.S. 38, 51 (2007), and conclude that Webb‘s life sentence is procedurally unreasonable because the district court entirely failed to address several non-frivolous arguments for a lower sentence. Accordingly, we vacate Webb‘s sentence and remand to the district court for resentencing.
1.
We begin with a brief description of Webb‘s sentencing proceedings. Before Webb‘s sentencing, Webb‘s presentence report had recommended a Sentencing Guidelines range of life imprisonment. That recommendation rested on a base offense level of 38 – reflecting the quantities of crack cocaine involved in Webb‘s offenses – adjusted to an offense level of 43 after the application of several sentencing enhancements. That offense level, in turn, translated to a Sentencing Guidelines range of life imprisonment for all criminal history categories, including Webb‘s criminal history category of V.
At sentencing, Webb was given a chance to allocute. Webb spoke briefly, using the opportunity to apologize to his family and then to criticize his indictment as “fatally flawed” and move for bond. J.A. 1445–46. When Webb was finished, the district court heard argument on objections to the recommended Guidelines calculations, including
Webb‘s counsel then turned to the heart of his argument: that the recommended life sentence was longer than necessary in light of the factors set out in
Moreover, counsel continued, Webb was 44 at the time of sentencing, so that a 20-year sentence would detain him until he was in his 60s and thus unlikely to reoffend. Such a sentence, counsel argued, would be sufficient to reflect the seriousness of Webb‘s offenses and to protect the public – “[I]s there any inclination that if he‘s out of jail in his 60s, that he‘s some danger to the public?” – while still giving Webb “some hope at the end
In response, the district court directly addressed counsel‘s description of Webb‘s comportment: “His allocution . . . undercuts much of what you said here today. . . . [H]e disagrees with the fact of his conviction and he‘s hostile to that. I don‘t see a flicker of acceptance of responsibility . . . .” J.A. 1456. The court then went on to hear from the government, which argued for the recommended life sentence and emphasized the negative effects of Webb‘s decade-long drug conspiracy on his community. The government also responded to some of Webb‘s arguments for a lower sentence: Because Webb had delegated to others in the course of committing his offenses, even advanced age upon release from prison might not prevent him from reoffending – “What‘s to say that he can‘t do that [at] 70?” J.A. 1459. And as to Webb‘s towing business, the government acknowledged Webb‘s efforts but emphasized that he had returned to selling drugs before his arrest.
The court then proceeded directly to imposition of a life sentence. The entirety of its explanation was as follows:
Well, my opinion is that the guidelines adequately represent the requirements of
3553(a) in this case and as the government has pointed out, this was a long, extensive, and pervasive drug conspiracy that profoundly impacted on a community and was a cancer eating away at the fabric of society, it was destroying many, many lives, he profited from it during its entire course. He made an attempt, both in the real practice of the crime and here in court to avoid accountability and to avoid responsibility. And the factors that are weighed under3553(a) suggests that a sentence of life is an appropriate guideline and it comes within the heartland of that sentence. And that thereis, really is no other alternative sentence that would protect the community and adequately punish him for the crimes that he committed.
J.A. 1461.2
2.
Webb argues that his life sentence is procedurally unreasonable because the district court did not address his non-frivolous arguments for a lower sentence and thus failed to put on the record the requisite “individualized assessment” of his case. United States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017) (quoting Gall, 552 U.S. at 50). We review a district court‘s sentence for abuse of discretion, see United States v. Provance, 944 F.3d 213, 217 (4th Cir. 2019), and we agree with Webb that his life sentence is procedurally unreasonable.
We review all criminal sentences for reasonableness, see Gall, 552 U.S. at 46, beginning with procedural reasonableness and moving on to substantive reasonableness only if there are no procedural errors, see id. at 51; Provance, 944 F.3d at 215. One of the entailments of procedural reasonableness is that a district court “place on the record an individualized assessment based on the particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). And while “[t]he adequacy of the sentencing court‘s explanation depends on the complexity of each case,” the court always must consider a defendant‘s non-frivolous arguments for a lower
The district court failed to do so here. Nowhere in the district court‘s brief explanation of its sentence, for instance, is there mention of Webb‘s argument that given his age, a shorter, 20-year sentence would be sufficient to incapacitate him until he is in his 60s and thus less likely to recidivate. There is no question that this is a non-frivolous argument; we have recognized the validity of precisely such arguments in finding a life sentence substantively unreasonable. See United States v. Howard, 773 F.3d 519, 533 (4th Cir. 2014) (drawing on “sound empirical evidence” and “studies demonstrat[ing] that the risk of recidivism is inversely related to an inmate‘s age“). But in explaining its sentence, the district court neither acknowledged this argument nor provided any explanation for rejecting it. The same is true of Webb‘s arguments regarding sentencing disparities with his co-conspirators – an argument drawn directly from the
The government does not dispute that the district court failed to address these non-frivolous mitigating arguments expressly when it explained its sentence. Instead, to the
It is true that our review of a district court‘s sentencing explanation is “not limited to the court‘s statements at the moment it imposes sentence,” but extends to the “full context, including the give-and-take of a sentencing hearing.” United States v. Nance, 957 F.3d 204, 213 (4th Cir. 2020). And there will be cases in which a sentencing court engages with a defendant‘s arguments in a way that makes “patently obvious” that it has given specific attention to a non-frivolous argument for a shorter sentence. Blue, 877 F.3d at 521; see also Nance, 957 F.3d at 213. Indeed, we think this is just such a case when it comes to the argument that Webb‘s professional comportment and acceptance of responsibility merit a shorter sentence: As described above, the district court directly engaged with that argument at sentencing, contrasting counsel‘s description of Webb with Webb‘s own allocution and explaining its view that Webb had shown not “a flicker of acceptance of responsibility.” J.A. 1456. That is the kind of give-and-take that may “make[] it patently obvious that the district court found [the defendant‘s] arguments to be unpersuasive,” Blue, 877 F.3d at 521 (internal quotation marks omitted), thus allowing us to evaluate the court‘s reasoning on appeal, see United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006) (explaining that the “context surrounding a district court‘s
But that was the district court‘s only comment during either counsel‘s argument as to the reasonableness of a life sentence. There is no similar give-and-take with respect to defense counsel‘s other three arguments for a lower sentence; at no point in the hearing did the court engage either Webb‘s counsel or the government‘s lawyer in a discussion of Webb‘s age and lowered future risk of recidivism, or the potential for a disparity between Webb‘s life sentence and the lower sentences of his co-conspirators, or the possible mitigating effect of Webb‘s legitimate work history. It may well be the case, as the government posits, that the district court “listened intently” to Webb‘s counsel as he made these arguments. Gov‘t Br. at 43. “But providing the defendant with ample opportunity to present arguments and properly considering those arguments are separate requirements of procedural reasonableness,” and we cannot infer the requisite consideration from silence alone, no matter how attentive. Blue, 877 F.3d at 520 (citation omitted); see also Nance, 957 F.3d at 214.
At bottom, the government is asking us to do what we have said we may not: fill in the gap in the district court‘s sentencing explanation with a “guess” as to how that court might have assessed the defendant‘s non-frivolous arguments for something other than a life sentence. Blue, 877 F.3d at 521 (quoting Carter, 564 F.3d at 329–30). Because the district court did not put on the record its consideration of three of Webb‘s non-frivolous arguments for a lower sentence or explain its rejection of those arguments, Webb‘s sentence is procedurally unreasonable. And because we “lack the necessary information
III.
For the reasons given above, we affirm Webb‘s conviction but vacate his sentence and remand for resentencing consistent with this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED*
* This opinion is published without oral argument pursuant to this Court‘s Standing Order 20-01, http://www.ca4.uscourts.gov/docs/pdfs/amendedstandingorder20-01.pdf (amended Apr. 7, 2020).