U.S. v. Brantley

• Decision Date: 21 July 2008
• Docket Number: No. 07-30724.,07-30724.
• Citation: 537 F.3d 347
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Olan Wayne BRANTLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

537 F.3d 347

UNITED STATES of America, Plaintiff-Appellee, v. Olan Wayne BRANTLEY, Defendant-Appellant.

No. 07-30724.

United States Court of Appeals, Fifth Circuit.

July 21, 2008.

Josette Louise Cassiere, Asst. U.S. Atty., Shreveport, LA, for U.S.

Betty Lee Marak, Shreveport, LA, for Olan Wayne Brantley.

Appeal from the United States District Court for the Western District of Louisiana.

Before PRADO, ELROD and HAYNES, Circuit Judges.

ELROD, Circuit Judge:

Olan Wayne Brantley appeals his sentence after pleading guilty to one count of passing counterfeit checks and one count of bank fraud. He contends that the sentence was unreasonable and that the district court's imposition of a fine was erroneous. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Brantley was charged with four counts of knowingly uttering and possessing counterfeit securities, in violation of 18 U.S.C. § 513(a), and with one count of making a fraudulent application for a bank loan, in violation of 18 U.S.C. § 1014. He pleaded guilty to counts three and five.

In the presentence report ("PSR"), the probation officer calculated that Brantley's total offense level was sixteen and that his criminal history category was V. The probation officer determined that Brantley's United States Sentencing Guidelines ("Guidelines") range was forty-one to fifty-one months of imprisonment and three to five years of supervised release, that the statutory maximum fine for each of Brantley's counts of conviction was $250,000, and that the Guidelines range for a fine was $5,000 to $50,000. The probation officer also found that Brantley did "not have the ability to pay a fine in addition to restitution" at the time the PSR was prepared.

Brantley offered corrections to factual assertions in the PSR but did not object to the Guidelines range calculations. The government moved for an upward departure or, alternatively, for a variance above the Guidelines sentence range on the basis that Brantley's criminal history category did not adequately reflect the seriousness of his past criminal history or the likelihood that he would commit future crimes.

The district court overruled Brantley's requests to correct factual assertions in the PSR, granted the government's request for a sentence above the Guidelines range, and sentenced Brantley to concurrent sentences of 120 months of imprisonment on the counterfeit-securities count and 180 months of imprisonment on the bank-fraud count. The district court also imposed concurrent sentences of three years of supervised release on the counterfeit-securities count and five years of supervised release on the bank-fraud count. The district court explained that the sentences were based on Brantley's extensive criminal history, his personal characteristics, the offenses of conviction, and the fact that incarceration and probation had not deterred him from crime, thereby requiring a long imprisonment term to protect the public. The district court also explained that it was imposing a fine of $65,000 in lieu of restitution due to the "lack of information and number of unidentified victims" in the case. Brantley appeals.

II. DISCUSSION

A. Reasonableness of Sentence

Brantley first argues that the sentence of incarceration imposed by the district court was unreasonable because it was 253% higher than the top of the Guidelines range and because the district court's basis for imposing it was primarily his criminal history category. He maintains that the basis for the sentence was improper because criminal history and the other 18 U.S.C. § 3553(a) factors relied upon by the district court were part of the Guidelines range calculation, and that according to United States v. Perrin, 478 F.3d 672, 678 (5th Cir.2007), abrogation recognized by United States v. Williams, 517 F.3d 801 (5th Cir.2008), factors included in the Guidelines range calculation cannot support a non-Guidelines sentence. He also contends that the sentence imposed was unreasonable because the district court did not give enough weight to the Guidelines sentence range, and that pursuant to United States v. Duhon, 440 F.3d 711 (5th Cir.2006), vacated, ___ U.S. ___, 128 S.Ct. 853, 169 L.Ed.2d 705 (2008), the district court improperly sentenced him based on its dissatisfaction with the Guidelines range calculation.

This court recognizes three types of sentences: (1) "a sentence within a properly calculated Guidelines range"; (2) "a sentence that includes an upward or downward departure as allowed by the Guidelines"; and (3) "a non-Guideline sentence" or a "variance" that is outside of the relevant Guidelines range. United States v. Smith, 440 F.3d 704, 706-08 (5th Cir.2006). The district court stated that based on the § 3553(a) factors, the sentence was outside of the Guidelines range both as an upward departure and as a variance. For present purposes, however, the specific characterization is irrelevant because, as shown below, the sentence imposed was reasonable "under the totality of the relevant statutory factors." United States v. Jones, 444 F.3d 430, 441 (5th Cir.2006).

In reviewing Brantley's sentence, this court must first consider whether the district court made a significant procedural error. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If no procedural error exists, the court then considers "the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard," irrespective of whether the sentence falls within the Guidelines range. Id. Because Brantley did not object to the reasonableness of the sentence before the district court, this court reviews the sentence for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). To demonstrate plain error, Brantley must show "error that is plain and that affect[s] substantial rights." United States v. Reyna, 358 F.3d 344, 350 (5th Cir.2004) (internal quotation marks and citation omitted). If he can meet these criteria, then the court has "the discretion to correct the forfeited error but should do so only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks and citation omitted).

As Brantley does not raise any procedural challenges to the sentence of incarceration, this court must consider the substantive reasonableness of the sentence. In doing so, the court should consider "the totality of the circumstances, including the extent of any variance from the Guidelines range." Gall, 128 S.Ct. at 597. The court, however, owes deference to the district court's determination of the appropriate sentence based on the § 3553(a) factors and may not reverse the district court's ruling just because it would have determined that an alternative sentence was appropriate. Id. The appropriate factors are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available (4) the kinds of sentence and the sentencing range established [in the applicable Guidelines] ...;

(5) any pertinent policy statement ... [;]

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

The district court determined that the sentence imposed was appropriate based on four of the statutory factors: Brantley's history and characteristics; the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment; the need for the sentence to provide adequate deterrence; and the need for the sentence to protect the public from further crimes. The district court also relied upon Brantley's criminal history in the PSR as the factual basis for imposing the sentence based on these factors.

This determination was reasonable for at least three reasons. First, Brantley's undisputed criminal history provides ample justification for the sentence. His criminal record includes eight separate convictions on a total of fourteen counts in five states over the twenty years prior to his sentencing. All of these convictions, like his present convictions, were for theft or fraud. The record thus indicates that the district court did not exaggerate when it stated that Brantley had "been practically a one-man crime wave for 30 years." The record also demonstrates the reasonableness of the district court's conclusions that Brantley's personal characteristics showed that he had not "learned [his] lesson" from his prior convictions and that a long incarceration period was required to provide just punishment, to ensure adequate deterrence, and to protect the public.

Second, Brantley's reliance on Perrin and Duhon is misplaced. He correctly asserts that according to Perrin, a district court could not rely upon a factor considered in the Guidelines sentence range calculations to justify a non-Guidelines sentence. 478 F.3d at 678. In Williams, however, this court expressly recognized Perrin's abrogation by the Supreme Court's rulings in Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007), Gall, 128 S.Ct. at 596-97, and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007), and held instead that a district court may rely upon factors already incorporated by the Guidelines to support a non-Guidelines sentence. Wi...