United States v. Gibbs, 17-4037

• Citation: 897 F.3d 199
• Decision Date: 16 July 2018
• Docket Number: No. 17-4037,17-4037
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erick Jemonta GIBBS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

897 F.3d 199

UNITED STATES of America, Plaintiff-Appellee,

v.Erick Jemonta GIBBS, Defendant-Appellant.

No. 17-4037

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2018

Decided: July 16, 2018

ARGUED: Sonya Maria Allen, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Donald Russell Pender, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Acting Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Chief Judge Gregory wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

After Erick Gibbs admitted to four violations of the conditions of his supervised release, the district court, upon giving its explanation for doing so, imposed the Guidelines-recommended sentence of 24-months' imprisonment. Gibbs contends that the sentence was plainly procedurally unreasonable because the district court did not adequately address his arguments in favor of a downward-variance sentence. We conclude, however, that the record amply demonstrates that the district court, in reaching its decision to impose the recommended sentence, considered Gibbs's arguments for a downward variance and addressed several of them, while highlighting the seriousness of the violations, as well as Gibbs's extensive criminal history. Accordingly, we affirm.

I

Gibbs pleaded guilty in August 2010 to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and thereafter he was sentenced to 36 months' imprisonment and 3 years' supervised release.

Six months after Gibbs was released from prison, he was charged in state court for possession of drug paraphernalia and, upon conviction, was sentenced to 45 days' imprisonment, suspended, and 18 months' probation. Then, in February 2013 and again in August 2013, Gibbs tested positive for the use of marijuana. Finally, in February 2014, Gibbs participated in a conspiracy to traffic in heroin and maintained a vehicle, dwelling, or place for controlled substances and, upon conviction, was sentenced to 19 to 32 months' imprisonment. All four of these incidents violated the conditions of Gibbs's supervised release, and Gibbs's probation officer accordingly filed a motion for revocation. At the revocation hearing, Gibbs admitted to all four violations, and the court thus found "as a fact that the defendant violated the terms and conditions of his 2010 judgment." The court concluded further that Gibbs's drug trafficking offense was a Grade A violation, the most serious. See U.S.S.G. § 7B1.1(a).

As provided by the policy statements in Chapter 7 of the Sentencing Guidelines, Gibbs's Grade A violation mandates revocation of supervised release, see U.S.S.G. §§ 7B1.1(a)(1), 7B1.3(a)(1), and when a Grade A violation is coupled with Gibbs's Criminal History Category VI, a sentence of 33 to 41 months' imprisonment is recommended, see id . § 7B1.4. But because the maximum revocation sentence that Gibbs could receive, given his underlying conviction, was 24 months' imprisonment, see 18 U.S.C. § 3583(e)(3), that sentence became his recommended sentence, U.S.S.G. § 7B1.4(b)(1). Counsel for both parties recognized as much.

While presenting no evidence at the hearing, Gibbs's counsel asked the court to impose a downward-variance sentence of 12 months' imprisonment based on three "mitigation factors." As she stated to the court, "There's extreme hardship on his family. There is the time already served [on the drug-trafficking conviction]. There may be, thirdly, some discussion from the Government."

On the first factor, which was counsel's main argument, counsel stated that a 24-month prison term would deprive Gibbs's three children of significant income and a stable home environment and would impose hardship on Gibbs's mother, who had relocated to care for the children during his absence, as his wife was deceased. With respect to Gibbs's earning potential, counsel noted that Gibbs "went through a program called Youth Build, where he learned a significant amount of skills. He can build a house from the ground up, framing, painting, landscaping." She also pointed to Gibbs's employment, stating that Gibbs had been employed "at the House of Raeford, the chicken plant" and at "Peters Landscaping Company, in Wilmington. He worked seven days, from 10 to 3. So he has skills that he can build upon once he gets this behind him." Counsel also noted that Gibbs had been "working toward his GED."

On the second mitigation factor, counsel noted that Gibbs had already served 14 months on his drug-trafficking conviction and therefore argued that he had already been duly punished.

And on the third factor, she stated, "hopefully, the Government will discuss with this Court" Gibbs's assistance to law enforcement after his drug-trafficking conviction.

Counsel then summarized Gibbs's justification for a downward variance:

Now, I'm asking for 12 months ... [a]nd I do think that period of time will be enough time to not only punish Mr. Gibbs, but certainly deter him from any further conduct. But ... it is [also] a reasonable time to be away from the unique and extraordinary situation that he has with his family. So that when he returns home, he can immediately jump in with the skills that he has and be able to provide resources for them[.]

In response, the government argued that Gibbs's Grade A violation was a "serious charge" and that otherwise he had an extensive criminal history:

200 bags of heroin was the amount that was involved with the second conviction in 2014. And Mr. Gibbs has had several prior drug convictions and has had 12 convictions prior to his federal sentence. And it's over a six-year period. And several of those were assaultive in nature. He had two assaults. He had multiple resisting officers. So he has not had a good track record.

The government noted further that one of the violations at issue—Gibbs's possession of drug paraphernalia—occurred within months after beginning his term of supervised release. But the government did acknowledge Gibbs's cooperation with law enforcement, explaining that "after the state [offense] with the 200 bags of heroin, [Gibbs] did meet with ATF and did assist them ... with regard to criminal activity in the Wilmington area." The government allowed that although the information Gibbs provided had not yet resulted in any charges, law enforcement officers believed that the information was "helpful" and "truthful."

After the district court offered Gibbs the opportunity to speak on his own behalf, which he declined to do, the court imposed the Guidelines' recommended sentence of 24-months' imprisonment. In doing so, it explained:

On March 1st, 2013, the defendant pled guilty to misdemeanor possession of drug paraphernalia in Brunswick County District Court and was sentenced to 45 days' imprisonment, suspended, 18 months of supervised probation. On January 19, 2015, the defendant was arrested and charged with felony conspiracy to traffic opium/heroin and felony maintain vehicle/dwelling/place for controlled substances. On September 17th, 2015, defendant pled guilty to conspiracy to sell heroin and maintain a vehicle/dwelling/place for controlled substances. The court imposed a 19 to 32 month term of imprisonment. On February 25th, 2013, and August 1st, 2013, the defendant tested positive for marijuana.

The defendant has a history of gang affiliation and has prior convictions for assault, marijuana possession, resisting a public officer, possession of stolen goods, trespass, possession of cocaine, possession of a firearm by a felon, possession of a handgun by a minor, carrying a concealed weapon, and driving while license revoked.

He has a scant employment record and little in the way of marketable job skills. While on supervision, the defendant did make an effort to obtain his GED. Upon consideration of Chapter 7 of the [Sentencing Guidelines Manual] and the relevant factors listed in 18 U.S.C. § 3553(a), the defendant's term of supervision is revoked and the defendant is ordered to be committed to the custody of the [BOP] ... for a period of 24 months.

When the court then asked defense counsel if she had anything further to add, she stated:

Yes, Your Honor. I would ask you to reconsider the range of 24 months again—if nothing else, for the extreme hardship that it's going to be on his family at this point. They have done a significant amount to try to mitigate this themselves. But him being away for two years, Your Honor, that's [something] I believe ... the Court can consider. I do not—as the United States has said, they believe that he should have ... something coming off.

In response, the court said, "All right." Then, after a "[b]rief pause in the proceeding" (as noted in the transcript), the court stated, "No change. Twenty-four months."

From the district court's judgment entered January 12, 2017, Gibbs appealed.

II

Gibbs contends that his sentencing was plainly unreasonable as a procedural matter because the district court failed to address or addressed inadequately his arguments for a downward-variance sentence. In particular, his counsel argues:

Perhaps most troubling, the district court, with no explanation whatsoever, found Mr. Gibbs had "little in the way of marketable job skills." This finding was strictly contrary to what defense counsel had asserted about her client and had offered as a mitigating factor, and yet the court did not explain why it believed Mr. Gibbs had little marketable job skills. Most of us cannot "build a house from the ground up."

The...