722 Fed.Appx. 505 (6th Cir. 2018), 17-1167, United States v. Banks

Docket Nº:17-1167
Citation:722 Fed.Appx. 505
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sarontay Deon BANKS, Defendant-Appellant.
Attorney:Shane N. Cralle, Douglas Cory Salzenstein, United States Attorneys Office, Eastern District of Michigan, Detroit, MI, for Plaintiff-Appellee Martin J. Beres, Law Office, Clinton Township, MI, for Defendant-Appellant
Judge Panel:BEFORE: SUHRHEINRICH, GRIFFIN, and THAPAR, Circuit Judges.
Case Date:January 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 505

722 Fed.Appx. 505 (6th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sarontay Deon BANKS, Defendant-Appellant.

No. 17-1167

United States Court of Appeals, Sixth Circuit

January 30, 2018

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

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[Copyrighted Material Omitted]

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Shane N. Cralle, Douglas Cory Salzenstein, United States Attorneys Office, Eastern District of Michigan, Detroit, MI, for Plaintiff-Appellee

Martin J. Beres, Law Office, Clinton Township, MI, for Defendant-Appellant

BEFORE: SUHRHEINRICH, GRIFFIN, and THAPAR, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Defendant Sarontay Banks belonged to a Detroit-based crew that robbed a Massachusetts jewelry store. For his part, Banks stole a getaway vehicle and waited outside

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while two other men ran into the store, smashed several glass cases with a sledgehammer, and took fifteen Rolex watches. Banks pleaded guilty to conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a).

The district court sentenced him as a career offender to 151 months in prison (a term at the bottom of the applicable Guidelines range), three years of supervised release, and $85,668 in restitution. Banks challenges that sentence on several grounds. Because Banks has forfeited his lynchpin Guidelines-calculation claim that Hobbs Act robbery does not qualify as a crime of violence, and because his remaining arguments lack merit, we affirm.

I.

Defendant maintains two Guidelines-calculation challenges. His primary contention is that the district court erroneously sentenced him as a career offender under the Guidelines because the instant offense is not a crime of violence.[1] He qualifies as a career offender if the instant felony offense and at least two of his prior felony convictions count as either crimes of violence or controlled-substance offenses. U.S.S.G. § 4B1.1(a). And Hobbs Act robbery qualifies as a crime of violence if it "has as an element the use, attempted use, or threatened use of physical force against the person of another," or if it is an offense listed in U.S.S.G. § 4B1.2(a)(2). See id. § 4B1.2(a).

Banks failed to develop this argument, so we consider it forfeited. See United States v. Brown, 819 F.3d 800, 829 (6th Cir. 2016). He does not address why Hobbs Act robbery would not qualify under the enumerated-offenses clause, which includes robbery and extortion. See U.S.S.G. § 4B1.2(a)(2). Although he asserts without exposition that Hobbs Act robbery can be accomplished without using force capable of causing physical harm, see U.S.S.G. § 4B1.2(a)(1), Defendant acknowledges that we rejected this argument in United States v. Gooch, 850 F.3d 285, 290-92 (6th Cir. 2017) and United States v. Tibbs, 685 Fed.Appx. 456, 464-65 (6th Cir. 2017). He observes that those cases involved firearms and analyzed the question under 18 U.S.C. § 924(c) rather than the Guidelines, but he does not address any differences between the statutory and the Guidelines crime-of-violence definitions, or otherwise explain why Gooch and Tibbs are not dispositive here. Such conclusory assertions are no substitute for developed argumentation.

Banks also argues it was error to increase his offense level pursuant to U.S.S.G. § 2B3.1(b)(2)(D) for "otherwise us[ing]" the sledgehammer during the robbery. But the alleged error, if any, was harmless. The offense level calculations made based on the Guidelines applicable to the instant offense did not ultimately determine Banks’s sentencing range. Those Guidelines established Banks’s base offense level as 20, which was then adjusted to 26 after four levels were added for using the sledgehammer, and another two for the attempted loss amount. His final offense level of 29 was calculated independently based on Banks’s career offender status, which required a base offense level of 32. See U.S.S.G. § 4B1.1(b)(3). Because Banks’s offense level as a career offender was greater than the otherwise-applicable adjusted offense level of 26, it controlled. See id. § 4B1.1(b). The district court plainly chose its sentence based on Banks’s

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career offender status; thus we need not remand because it may have erred in calculating Banks’s offense level under Guidelines that did not control. See Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

II.

Defendant also claims that his sentence is both procedurally and substantively unreasonable. We review reasonableness challenges for abuse of discretion. United States v. Kamper, 748 F.3d 728, 739 (6th Cir. 2014). We find that Banks’s within-Guidelines sentence is reasonable.

A.

We first consider whether the district court committed "significant procedural error, such as ... failing to consider the § 3553(a) factors[.]" Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Banks argues that the district court so erred by failing to consider whether his criminal history was overrepresented, or whether there was a disparity between his Guidelines range and those of his co-defendants, and by basing its sentence on a general perception of the risk a smash-and-grab robbery poses rather than on the circumstances of the instant offense. We address each argument in turn.

Banks is correct that the district court did not expressly address whether his criminal history was overrepresented even though he asked the district court to vary below the career offender Guidelines range. A district court cannot ignore a defendant’s non-frivolous arguments, but "we may assume, even absent express analysis by the judge, that the sentence reflects consideration of the argument" where a defendant "presents issues that are conceptually straightforward[.]" United States v. Simmons, 587 F.3d 348, 361 (6th Cir. 2009).

Here, as the government emphasized and the presentence investigation report ("PSR") detailed, thirty-year-old Banks had already been convicted five separate times for drug trafficking offenses, once for larceny from a motor vehicle, and once for armed robbery. The government elaborated that the larceny and armed robbery convictions involved dangerous conduct including a flight from police and Banks pointing a gun at a victims stomach. Moreover, the government noted, defendant had "absconded" from supervision twice in the past, "had 27 misconducts in prison," and had "[n]ew criminal history almost every time [he had been] on probation." Bankss defense counsel gave no substantive response other than to assert that his client had not dealt drugs "on the scale the government would have the Court...

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