U.S. v. Robertson

• Citation: 568 F.3d 1203
• Decision Date: 19 June 2009
• Docket Number: No. 08-3126.,08-3126.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio ROBERTSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

568 F.3d 1203

UNITED STATES of America, Plaintiff-Appellee, v. Antonio ROBERTSON, Defendant-Appellant.

No. 08-3126.

United States Court of Appeals, Tenth Circuit.

June 19, 2009.

Terrence J. Campbell, Barber Emerson, L.C., Lawrence, KS, for Defendant-Appellant.

Leon Patton, Assistant United States Attorney (Marietta Parker, Acting United States Attorney, with him on the briefs), Kansas City, KS, for Plaintiff-Appellee.

Before O'BRIEN and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.

BALDOCK, Circuit Judge.

A report of suspected drug-dealing activity led police officers to an intersection in Kansas City, Kansas at which they found Defendant Antonio Robertson and another individual standing outside a parked car. Upon observing an unknown party leaving the area in a Ford Explorer, officers executed a stop of the vehicle and obtained a small baggie of marijuana from its driver.

For safety purposes, officers ordered Defendant and his companion to stand against a wall, while they assessed the situation. Defendant subsequently engaged in a conversation on his cell phone and repeatedly walked away from the wall. After multiple warnings, officers decided to arrest Defendant for obstruction, but when they attempted to handcuff Defendant he pulled away, revealing a pistol in his waistband. Eventually officers managed to handcuff Defendant and recover the gun, which turned out to have been stolen during a residential burglary. Police also uncovered a bottle of phencyclidine or PCP on Defendant's person. Federal agents later discovered, through a records check, that Defendant had several prior felony convictions.

A grand jury ultimately indicted Defendant for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and Defendant pled guilty, pursuant to a written plea agreement. Departing upward from the recommended Guidelines range of 18 to 24 months, the district court sentenced Defendant to 41 months' imprisonment. See United States v. Sells, 541 F.3d 1227, 1237 n. 2 (10th Cir.2008) (explaining that a "departure" occurs when a district court reaches a sentence above or below the recommended Guidelines range through the application of Chapters Four and Five of the Sentencing Guidelines, whereas a "variance" occurs when a district court reaches a sentence that differs from the recommended Guidelines range through the application of the factors outlined in 18 U.S.C. § 3553(a)). On appeal, Defendant disputes the reasonableness of that sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

I.

We begin with a brief summary of the Presentence Report (PSR) and the district court's rationale for imposing a 41-month sentence. Calculating Defendant's total offense level at 13 and his criminal history category at III, the PSR adopted a recommended Guidelines range of 18 to 24 months' imprisonment. The PSR noted, however, that the "nature of the defendant's offense, his prior arrests involving the use of firearms, his substance abuse history with PCP, and his high risk to recidivate" could present grounds for an upward departure under United States Sentencing Guidelines (U.S.S.G.) § 4A1.3.

A.

According to the PSR, Defendant's criminal history began at age 14 and spanned, at the time of his arrest, approximately half of his 29 years of life. Most of Defendant's criminal convictions involved drugs or guns. Parole records revealed multiple instances in which Defendant's probation was revoked. The PSR also noted that the Government was compelled to dismiss multiple charges against Defendant because key prosecution witnesses failed to appear. Two of these charges largely precipitated the district court's upward departure in this case and are thus central to the resolution of this appeal.

At age 20, Defendant was charged with Criminal Discharge of a Firearm at an Occupied Dwelling. On that occasion Defendant drove to a Kansas City residence with an individual known as JJ, threatened its occupants, and proceeded to shoot randomly at the house — as well as a vehicle entering the driveway — with a semiautomatic handgun. Defendant continued to fire shots in several directions while exiting the scene. Seven years later, Defendant was charged with Criminal Discharge of a Firearm at an Occupied Vehicle. This time Defendant and JJ drove behind a vehicle with two passengers and fired shots into the car, causing the driver to strike and injure the occupants of a third vehicle. As his targets fled the scene on foot, Defendant again opened fire.

B.

At sentencing, the district court inquired whether Defendant or the Government had any objections to the PSR, which contained the foregoing description of Defendant's criminal past. Transcript of Sentencing Proceedings of May 5, 2008 (Sentencing Transcript) at 2-3. No objection was forthcoming, which led the district court to consider Defendant's and the Government's request that it impose a sentence at the low end of the 18 to 20 month Guidelines range.¹ See id. at 2-3, 12. Almost immediately, the district court put the parties on notice that it was inclined to upwardly depart from the recommended Guidelines range based on § 4A1.3(a) of the Guidelines. See id. at 3-4. Section § 4A1.3(a) allows for upward departures in cases in which a defendant's criminal history category either substantially under-represents the seriousness of his criminal history or the likelihood that he will commit other crimes.

The district court first listened to Defendant's and his counsel's response. It then explained, as follows, why it continued to believe an upward departure was appropriate:

You know, I realize that your life started . . . with a lot of problems and you didn't have good supervision from parents and sort of got off on the wrong track. But I'm also looking at this record which shows that you have a long history of carrying weapons, using weapons in a violent way. Basically, you've got a history of drug use, you've got [a] serious past criminal record, and you haven't performed well under supervision.

It looks to me when I look at all of the factors contained, that you have a very high likelihood of committing other crimes and that you haven't been punished by the Courts in a way that's caused you to really take stock of where your life is going and make any serious effort to get your life on a different track.

. . .

[Paragraphs] 48 and 50 [of the PSR] I think it was — yes, the victims failed to appear. Those were criminal discharge of a firearm at an occupied dwelling and criminal discharge of a firearm in a occupied vehicle. One of those was only three years ago.

. . .

And, you know, I'm going to give counsel an opportunity to comment on this, but it does appear to me that when you look at . . . all of the circumstances, that the defendant's criminal history category does not adequately reflect the seriousness of his entire past criminal record or the likelihood that he will commit other crimes.

And even though he's in a criminal history category of 3, the record here more closely resembles what I typically see in a criminal history category of 6. If we were to sentence him under that kind of guidelines scheme, the sentence we would be looking at would be in the guideline range of 33 to 41 months instead of 18 to 24.

Id. at 13-16. In reply, defense counsel implored the district court not to consider the charges dismissed against his client, citing the fact that Defendant had "never been proven guilty of those offenses." Id. at 16. But counsel acknowledged that if Defendant had been convicted of discharging a firearm at an occupied dwelling and vehicle, his criminal history category would have been VI. See id.

Despite counsel's protestations the district court remained convinced that an upward departure was appropriate and it, accordingly, proposed a sentence of 41 months' imprisonment followed by three years of supervised release. See id. at 18. In the district court's view, Defendant's extensive criminal history and poor performance on probation were not adequately represented by a criminal history category of III. A much better match, in its mind, was a criminal history category of VI, as the district court illustrated:

[D]efendant's criminal behavior started at age 14; he's presently 30 years old. He has a consistent history of carrying weapons; this is his sixth arrest involving firearms. He has two prior arrests involving firearms that were violent in nature. He's relied on drug distribution as a means for supporting himself. He has a history of committing new offenses and using drugs on supervision. And I don't believe that his criminal history category adequately reflects the seriousness of his criminal record or the likelihood that he will commit another [sic] crimes.

Therefore, the Court intends to depart upward and finds the criminal history category which more closely — most closely resembles that of this defendant is a criminal history category of 6, which with a total offense level . . . of 13, would put him in a custody range of 33 to 41 months.

I believe that a sentence at [that] level of the guidelines more appropriately addresses all of the sentencing factors contained in Section 3553(a)(2) because it more adequately reflects the seriousness of your offense, promotes respect for the law, provides just punishment, and protects the public, most importantly, from further crimes by you.

Id. at 17-18. After Defense counsel referenced his previous objections, the district court found that the PSR was accurate and incorporated its findings into the court's ruling. See id. at 20-21. The district court then sentenced Defendant to 41 months' incarceration, followed by three years of supervised release. See id. at 21.

II.

Before we reach the merits of Defendant's sentencing challenge, we must address our standard of review. Defendant's only objection at his sentencing hearing was to the district...