U.S. v. Blewitt

• Decision Date: 05 April 2019
• Docket Number: No. 18-1356,18-1356
• Citation: 920 F.3d 118
• Parties: UNITED STATES of America, Appellee, v. Seth J. BLEWITT, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

920 F.3d 118

UNITED STATES of America, Appellee,

v.Seth J. BLEWITT, Defendant, Appellant.

No. 18-1356

United States Court of Appeals, First Circuit.

April 5, 2019

Leslie W. O'Brien, Boston, MA, on brief for appellant.

Halsey B. Frank, United States Attorney, and Benjamin M. Block, Assistant U.S. Attorney, on brief for appellee.

Before Lynch, Selya, and Boudin, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Seth J. Blewitt, who stands convicted of bank robbery, Hobbs Act robbery, and a related firearms offense, challenges his sentence. He argues that the sentencing court acted in contravention of the Supreme Court's opinion in Dean v. United States, ––– U.S. ––––, 137 S.Ct. 1170, 1178, 197 L.Ed.2d 490 (2017), and in the bargain, engaged in impermissible gender stereotyping. Concluding, as we do, that the appellant's arguments contain more cry than wool, we affirm.

I. BACKGROUND

Since this appeal follows a guilty plea, we draw the relevant facts mainly from the change-of-plea colloquy, the presentence investigation report (PSI Report), and the sentencing transcript. See United States v. Rentas-Muñiz, 887 F.3d 1, 2 (1st Cir. 2018) ; United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). But because one of the appellant's claims of sentencing error is inextricably intertwined with the sentencing of his accomplice (his then-wife, Cara Blewitt), we add certain undisputed facts relating to her sentencing.

On May 28, 2017, the appellant, with his physiognomy obscured by a winter hat and sunglasses, entered a bank in Bangor, Maine. After telling the teller that he was "actually robbing [her]," he proceeded to do just that. In carrying out the heist, he neither threatened the teller nor displayed a weapon. Absconding with $ 500, the appellant joined Cara Blewitt in their getaway vehicle.

This scene was reprised the next day, when the appellant robbed a discount variety store. On that occasion, though, the appellant was armed with a sawed-off shotgun. Cara Blewitt again drove the getaway car.

Shortly after the second robbery, the police identified the Blewitts as the robbers. Warrants were issued, and the couple was arrested during a traffic stop. Several shotgun shells were found on the appellant's person and in the Blewitts' car. A further search of the vehicle revealed $ 300 in cash, a Remington .22 long rifle, and hundreds of rounds of ammunition. Moreover, a forensic examination of the appellant's cell phone disclosed multiple internet searches related to robbery. These included: "Hard up for cash? Rob a Dollar Store," "How nine out of every ten muggers get away with it," and "Robbery: What is the best way to rob a store?"

In due course, a federal grand jury sitting in the District of Maine returned an indictment against the appellant. The indictment charged him in three counts: bank robbery in violation of 18 U.S.C. § 2113(a) (count 1); interference with commerce by robbery in violation of 18 U.S.C. § 1951 (count 2); and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (count 3). The appellant initially maintained his innocence but, on November 30, 2017, reversed his field and pleaded guilty to all three counts of the indictment. There was no plea agreement.

When prepared, the PSI Report recommended a guideline sentencing range (GSR) for counts 1 and 2, as a group, of 37 to 46 months. By statute, count 3 required a mandatory minimum sentence of 84 months to run consecutively to any sentence imposed on the grouped counts (counts 1 and 2). See 18 U.S.C. § 924(c)(1)(A)(ii).

Cara Blewitt was prosecuted separately and the case against her followed a somewhat different course. She admitted her involvement in the robberies shortly after her arrest, waived indictment, and was charged in an information. While the information charged her with the same two robbery offenses with which her then-husband was charged, it did not charge her with a firearms offense. She pleaded guilty to both counts of the information.

Cara Blewitt's sentencing hearing was held on March 26, 2018. The district court expressed concern about the potential disparity in the sentences that she and the appellant faced. The court questioned why the government had chosen not to bring identical charges against both spouses, suggesting that the government's charging decisions had been influenced by assumptions about the gender roles of the defendants. The government responded that it did not believe it had sufficient evidence to charge Cara Blewitt with the firearms offense. The court was not satisfied: it noted that the probation department had recommended a minor role reduction for Cara Blewitt, see USSG § 3B1.2(b), and wondered why the government had not opposed that reduction, again suggesting that the government's decision was premised on gender stereotyping. The government rejoined that Cara Blewitt was less culpable than the other participant. Despite its reservations, the court followed the probation department's recommendations, calculated Cara Blewitt's GSR to be 46 to 57 months,¹ and sentenced her to a downwardly variant 33-month term of immurement.

The district court convened the appellant's sentencing hearing approximately two weeks after Cara Blewitt's sentencing. The court adopted the guideline calculations limned in the PSI Report and set the appellant's GSR for the grouped counts at 37 to 46 months. It then remarked the 84-month consecutive sentence mandated with respect to the firearms count. After again voicing its concern with the disparity between Cara Blewitt's recently imposed sentence and the appellant's prospective sentence, the court suggested that "typical gender roles" may have influenced the government's charging decisions. The court went on to sentence the appellant to a downwardly variant 24-month term of immurement on the grouped counts, followed by a consecutive 84-month term of immurement on the firearms count — a total of 108 months of incarceration. This timely appeal ensued.

II. ANALYSIS

In this venue, the appellant advances two claims of error. First, he submits that the district court committed procedural error in failing to appreciate that it had discretion to consider the mandatory sentence on the firearms count when formulating the sentence for the grouped counts. Second, he submits that the district court impermissibly engaged in gender stereotyping when formulating his sentence and, thus, transgressed his constitutional right to equal protection. We examine these claims separately.

A. The Asserted Dean Error.

The appellant's first claim of error hinges on his allegation that the district court determined his sentence on the grouped counts based on a "mistaken belief" that it could not take into account the mandatory minimum sentence that it would have to impose on the firearms count. This is a claim of procedural error, and we review claims of procedural error in sentencing appeals for abuse of discretion.² See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Torres, 541 F.3d 48, 51 (1st Cir. 2008). "Within this rubric, we assay the district court's factfinding for clear error and afford de novo consideration to its interpretation and application of the sentencing guidelines." United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

The appellant rests this procedural challenge on a single statement of the sentencing court: "Congress has mandated that after I calculate the underlying sentence, I must impose an 84-month sentence if someone goes and brandishes a gun." This remark, the appellant says, is a telltale sign that the court committed the same procedural error that the Supreme Court condemned in Dean. We do not agree.

Dean, like this case, involved a sentencing proceeding at which the defendant was to be sentenced both for predicate offenses that carried no mandatory minimum and for firearms offenses that each carried a mandatory minimum. There, as here, the mandatory minimum sentence had to be imposed to run consecutively to the predicate-offense sentence. See Dean, 137 S.Ct. at 1174-75. The defendant asked the sentencing court to take his mandatory sentence into account when fashioning his sentence on the predicate-offense counts and to impose a one-day sentence on those counts. See id. at 1175. The district court responded that even though the mandatory minimum sentence plus one day would be "more than sufficient," it did not think that it could sentence the defendant to one day for the predicate offenses simply because the defendant was subject to a lengthy mandatory minimum sentence for the firearms offenses. Id. The Eighth Circuit affirmed the resulting sentence. See United States v. Dean, 810 F.3d 521, 533 (8th Cir. 2015).

The Supreme Court granted certiorari and vacated the defendant's sentence, emphasizing that "[s]entencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence." Dean, 137 S.Ct. at 1175. Given the breadth of this discretion, the Court concluded that nothing in section 924(c) should be read to "restrict[ ] the authority conferred on sentencing courts ... to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count." Id. at 1176-77. It follows that for a sentencing court to engage in the conduct condemned in Dean, it must have "erroneously believed it had to ‘ignore the fact that the defendant will serve the mandatory minimum[ ] imposed’ under section 924(c) when calculating a just sentence" for other offenses. United States v. Vallellanes-Rosa, 904 F.3d 125, 128 (1st Cir. 2018) (alteration in original) (quoting Dean, 137 S.Ct. at 1174 ).

The statement identified by the appellant — "Congress has mandated that after I calculate the underlying sentence, I must impose an 84-month sentence if someone goes and brandishes a gun" — is merely a statement of fact. It says...