U.S. v. Ellis

• Decision Date: 26 May 2011
• Docket Number: No. 09–50652.,09–50652.
• Citation: 641 F.3d 411
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Kevin Brian ELLIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

641 F.3d 411

11 Cal. Daily Op. Serv. 6372

2011 Daily Journal D.A.R. 7685

UNITED STATES of America, Plaintiff–Appellee,

v.Kevin Brian ELLIS, Defendant–Appellant.

No. 09–50652.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2011.Filed May 26, 2011.

Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant Kevin Brian Ellis.Robert J. Keenan, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee United States.Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, Senior District Judge, Presiding. D.C. No. 8:07–cr–00087–AHS–1.Before: PAMELA ANN RYMER, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Defendant Kevin Ellis appeals his sentence for seven counts of bank robbery. He argues that his sentence must be vacated and the case remanded for resentencing because the government breached the plea agreement, the district court's decision to make an upward departure from criminal history category II to III, see USSG § 4A1.3, was procedurally erroneous, and the district court's overall sentence was substantively unreasonable. We hold that the government did not breach the plea agreement. Further, applying the reasoning in United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.2006), we hold that we review upward departures under § 4A1.3 for substantive reasonableness, not for procedural error, and conclude that the district court's sentence was substantively reasonable and any procedural error was harmless.

I

During the period from November 29, 2006 to May 3, 2007, Ellis committed seven bank robberies. Dressed in dark sunglasses, a white dress shirt, a tie, and a dark colored fedora, Ellis would approach one or two tellers and, either showing or pointing a simulated hand gun, would demand they hand over their money. In some cases, Ellis would pass the teller a note. (On February 3, 2007, for example, the note read, “I have a gun!! I will shoot you!!”) Ellis would then place the money into a bag and exit the bank. During his fifth robbery, on March 6, 2007, Ellis instructed three employees to get into a closet while he exited the bank. And after the seventh robbery, on May 3, 2007, he led police on a high-speed chase, which ended with officers using a Pursuit Intervention Technique maneuver (a maneuver which forces the suspect's vehicle to abruptly turn sideways to the direction of travel). Police officers subsequently apprehended Ellis, who thereafter admitted to committing the seven robberies.

Ellis was charged in a seven-count indictment, each count relating to one of the seven bank robberies. On June 1, 2009, Ellis pleaded guilty to all seven counts pursuant to a plea agreement with the government. As explained in greater detail below, paragraph 14 of the plea agreement set forth the key terms relevant to this appeal. The parties' calculations of the base offense level and specific adjustments for the seven counts resulted in a total offense level of 29. The paragraph also stated that Ellis and the government “agree to not argue for application of any specific offense characteristic or adjustment other than those stipulated to above.” The government promised not to make a motion “for an upward departure as to defendant's offense level,” but reserved “the right to argue for an upward criminal history departure of up to Criminal History Category IV,” and “the right under Booker to argue for a sentence of up to the high-end of the Guidelines range for Offense Level 29 and Criminal History Category IV,” i.e., 151 months.¹

The presentence report (PSR) noted the plea agreement's offense level calculation and provided its own, also resulting in a total offense level of 29. The PSR included details of Ellis's criminal history. Prior to the seven bank robberies at issue here, Ellis had been convicted of two criminal offenses. At age 16, he and another defendant used a pistol to rob two victims. Ellis was convicted of two counts of armed robbery and was sentenced to five years in state prison on each count, to be served concurrently. At age 28, he was convicted of forcible rape. According to the police report, Ellis grabbed a woman from behind, beat her with his fists, and forced the victim to have oral sex and intercourse with him. Ellis was sentenced to 75 months in state prison for this offense. In addition, the PSR indicated that Ellis had a troubled childhood and had been subject to physical and verbal abuse. It also stated that after his release from prison, Ellis became addicted to gambling and suffered economic losses which led to his bank robbery spree.

After Ellis and the government submitted a first set of briefs in response to the PSR, the government filed a supplemental sentencing brief, which Ellis claimed constituted a breach of the plea agreement. (The plea agreement, as well as the parties' sentencing briefs, are described in more detail below.) On December 14, 2009, the district court rejected Ellis's claim of breach, and exercised its discretion to impose an above-Guidelines sentence.

On appeal, Ellis argues that his sentence must be vacated for two reasons: first, the government breached the plea agreement; and second, the sentence imposed by the district court was procedurally incorrect and substantively unreasonable under 18 U.S.C. § 3553(a).

II

In order to evaluate Ellis's arguments, we must first examine how the Guidelines apply to Ellis's offenses, and the differences between the offense level calculations in the PSR and those agreed to by the parties in the plea agreement.

The calculation of the Guidelines range is a crucial first step in the sentencing process. Even though the Guidelines are advisory, they are still the “starting point and the initial benchmark” for the sentencing process, Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (internal quotation marks omitted), and an appellate court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,” Gall, 552 U.S. at 51, 128 S.Ct. 586. If the district court makes a procedural error, then the ordinary course is to vacate and remand. See United States v. Munoz–Camarena, 631 F.3d 1028, 1030 n. 5 (9th Cir.2011) (explaining that harmless error in Guidelines calculations is rare), vacating 621 F.3d 967 (9th Cir.2010). “Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51, 128 S.Ct. 586.

The first step in calculating the applicable Guidelines range is to ascertain a defendant's offense level, that is, the number of points associated with his criminal activity. See USSG § 1B1.1(a). Ellis's plea agreement calculated his offense level as follows. Because seven separate robberies were involved, the Guidelines' instructions for grouping similar offenses were applicable, and they required the parties to start by identifying the count with the highest offense level. Id. §§ 3D1.2, 3D1.3. Here, the parties agreed that Ellis's most serious count was Count 5, the March 6, 2007 robbery where three employees were ordered into a closet. This count had a base offense level of 20. See USSG § 2B3.1(a) (setting the base offense level for robbery at 20).

After determining the base offense level, the next step under the Guidelines is to apply “any appropriate specific offense characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in the order listed.” Id. § 1B1.1(b). In the plea agreement, the parties agreed to three specific offense characteristics that would be added to Count 5: two points for the banks' FDIC-insured status, see id. § 2B3.1(b)(1); two points for Ellis's physical restraint of the three bank employees by ordering them into the closet, see id. § 2B3.1(b)(4)(B); and three points for brandishing the simulated handgun, see USSG § 2B3.1(b)(2)(E). This added up to seven additional points, for a total of 27.

Next, the Guidelines require the application of any applicable adjustments. Id. § 1B1.1(c). The parties agreed to two adjustments to Count 5. First, the parties added the grouping adjustment described in §§ 3D1.3(a) and 3D1.4. Because there were seven separate offenses, the parties added five points to the offense level of the most serious offense (Count 5). See id. § 3D1.4 (“The combined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by ... 5 levels [where, as here, there are more than 5 units].”). Adding five points to the 27 points calculated above adds up to a total of 32 points. The parties also agreed to a second adjustment: a reduction of three points for acceptance of responsibility. See id. § 3E1.1. This led to a total offense level calculation of 29 points.

The PSR's calculation of the total offense level was the same as the parties' calculation in the plea agreement, with one exception. Specifically, the PSR concluded that Count 7 (the robbery involving the high-speed chase) had the same offense level as Count 5 (which the parties had agreed was the most serious count). According to the PSR, during the robbery described in Count 7, Ellis “recklessly created a substantial risk of serious bodily injury because he drove at a high rate of speed, failed to stop at marked stop signs, drove on the opposite side of the road, and side-swiped an occupied vehicle.” Therefore, the PSR determined that a 2–point upward adjustment for obstruction of justice under § 3C1.2 should apply. As a result, both Count 7...