U.S. v. Shaw

• Citation: 560 F.3d 1230
• Decision Date: 03 March 2009
• Docket Number: No. 07-14693.,07-14693.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert SHAW, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

560 F.3d 1230

UNITED STATES of America, Plaintiff-Appellee, v. Robert SHAW, Defendant-Appellant.

No. 07-14693.

United States Court of Appeals, Eleventh Circuit.

March 3, 2009.

Timothy Cone, Kathleen M. Williams and Helaine Batoff, Fed. Pub. Defenders, Miami, FL, for Shaw.

Anne R. Schultz, Asst. U.S. Atty., Sally M. Richardson, Dawn Bowen, Miami, FL, Randall Dana Katz, Ft. Lauderdale, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CARNES, Circuit Judges, and THRASH,^* District Judge.

CARNES, Circuit Judge:

When Robert Shaw was thirteen years old he hurled a rock through a car windshield, sending shards of glass into his victim's face. Fifteen years later Shaw was speeding through Miami, with a cocked and loaded pistol and ski masks, on his way to burglarize a "drug hole." His rap sheet during the intervening years is long enough to require extra postage. It shows 27 arrests involving 62 counts, and sentences totaling at least 105 months in spite of receiving one break after another from the system. Indeed, from Shaw's criminal record it seems as though he is determined to serve a life sentence, albeit on the installment plan. The question this appeal presents is whether the current installment is a reasonable one.

Shaw, who pleaded guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), contends that it was unreasonable for the district court to vary upward from the guideline range of 30 to 37 months and impose the statutory maximum of 120 months. More specifically, he complains that the district court relied solely on its own ideas of "how sentencing purposes could best be achieved" instead of giving due weight to each factor outlined in 18 U.S.C. § 3553(a), and that it failed to provide a "significant" justification for the variance.

I.

A.

The latest episode in Shaw's extensive criminal history occurred when a Miami-Dade police officer stopped him on December 26, 2006 for speeding. When the officer reached the vehicle he saw Shaw attempting to hide a firearm on the passenger-side rear floorboard. Despite the officer's repeated warnings to keep his hands visible, Shaw lowered his right hand in the direction of the weapon. A search of the car conducted after back-up officers secured Shaw and his two passengers revealed a loaded Browning 9mm pistol— with its hammer back in firing position— and two ski masks. The discovery of the ski masks, which were hidden in a side panel of the center console, prompted a call to the robbery unit.

Shaw was arrested after a records check showed that he was a convicted felon. In a post-Miranda statement to a robbery detective, Shaw admitted that he had been headed toward a nearby drug hole (a place where drugs are being sold). He also admitted that he and his front-seat passenger had discussed burglarizing the drug hole after casing it. Even though he had been seen reaching for the pistol, Shaw denied possessing it and claimed that it belonged to the back-seat passenger.

Shaw pleaded guilty to possession of a firearm and ammunition by a convicted felon. The presentence investigation report set his base offense level for this § 922(g)(1) violation at 14 pursuant to U.S.S.G. § 2K2.1(a)(6). Because Shaw provided an acceptance of responsibility statement, he received a two-level adjustment under U.S.S.G. § 3E1.1(a) that brought his total offense level down to 12.

B.

To calculate Shaw's criminal history category, the PSR devoted nine full pages to recounting his known criminal conduct. Because of its importance in assessing the reasonableness of Shaw's sentence, we describe that conduct in detail.

Shaw's first documented incident of criminal behavior occurred in March 1992 when, at age thirteen, he smashed a car windshield with a rock. Glass fragments peppered the car occupant's face, which led police to charge Shaw with aggravated assault. Despite the seriousness of the crime and the charge, Shaw was referred to an alternative program for juvenile offenders for approximately seven months. This grant of leniency would be the first of many he would receive. And his response to leniency would be the same each time.

Incidents two and three occurred around the time Shaw completed the juvenile program in October 1992. On October 10 of that year, four days before his program ended, he was arrested in connection with an automobile theft and charged with grand theft of a vehicle. Six days later— and just two days after finishing the juvenile program—the still thirteen-year-old Shaw was arrested for driving a stolen car and charged with grand theft auto. Adjudication was withheld on both counts, and Shaw received another non-custodial sentence when he was placed on community control for approximately nine months.

Incident four involved an August 1994 hit-and-run accident in which Shaw was driving a stolen car. He fled from the scene on foot but was apprehended by officers and charged with criminal mischief. This time the now fifteen-year-old Shaw was convicted, but he was shown mercy yet again in the form of a non-reporting probationary sentence.

A month later in September 1994, incident five resulted in seven charges: two counts each of grand theft vehicle, burglary, and criminal mischief, along with one count of resisting arrest. The PSR does not outline the facts leading to these counts. It does note that they were nolle prossed.

Incident six occurred in May 1995. It involved Shaw's theft of a woman's purse from her truck at a gas station in Miami Beach. He was charged with petit theft and loitering, but the State Attorney's Office did not pursue those charges.

Only six weeks later came incidents seven, eight, and nine. In July 1995 Shaw was linked by fingerprints to an automobile burglary that he had committed the month before. When officers attempted to arrest him for it, Shaw fled on foot. The officers chasing him saw Shaw take a revolver from his waistband and throw it down. Shaw was apprehended the next day as he was attempting to burglarize an occupied residence. These incidents led to seven more charges: two counts each of burglary and criminal mischief; one count of resisting arrest; one count of possession of a firearm by a minor; and one count of carrying a concealed weapon. Even though Shaw's crimes now involved guns and entering people's homes, none of those charges were pursued. The leniency continued, and so did the criminal behavior.

Shaw committed the acts that are incident ten in January 1996, when he was seventeen. During an armed robbery investigation, police stopped a car in which he was riding and found a stolen gun underneath the passenger seat. Shaw had a holster in his pants. He was charged with grand theft and carrying a concealed firearm. Continuing the pattern of leniency, no action was taken on any count.

Seven weeks later, incident eleven took place. Shaw and a partner fled from police officers who came upon them as they were stripping a vehicle. Shaw eventually was caught and charged with burglary, grand theft vehicle, and resisting arrest. Again, no action was taken on the charges.

Two weeks later came incident twelve. Shaw stole several bags from a parked vehicle after breaking its window to enter it. Charged as an adult with grand theft vehicle, criminal mischief, and burglary of an unoccupied conveyance, Shaw received one year of probation after adjudication was withheld. None of the first twelve incidents of Shaw's criminal behavior resulted in a sentence involving any jail time.

Shaw was finally given a jail sentence as a result of incident thirteen. Caught driving a stolen car in December 1996, Shaw, who was eighteen, was charged with grand theft vehicle and resisting arrest. He was found guilty on both counts and given two sentences of 100 days in jail. Those convictions resulted in the revocation of the probation Shaw had received for incident twelve and an additional sentence of 100 days for that earlier crime. All three sentences ran concurrently.

Shaw must not have served his full 100-day sentence, though, because a mere 67 days later in March 1997 he was arrested with two cohorts for attempting to break into a car. For this incident, his fourteenth one—and only the midpoint of his criminal history—Shaw was charged with possession of burglary tools, attempted burglary of an unoccupied conveyance, and resisting arrest. Found guilty, Shaw received two concurrent sentences of nine months in jail.

The longer jail sentence apparently did nothing to dampen Shaw's enthusiasm for criminal pursuits, because he was arrested six times in the year following his completion of that sentence. In January 1998 Shaw, now nineteen, was stopped for incident fifteen after being observed casing parked cars in an area of Miami known for its high volume of stolen vehicles. He was carrying a stolen cell phone and a broken spark plug when he was detained. The State Attorney's Office took no action on the four resulting charges, which included loitering, possession of burglary tools, and two counts of grand theft.

Two months later, following incident sixteen, Shaw was fined and spent twenty-two days in jail after being convicted of petit larceny and obstruction of justice. The PSR does not describe the facts that led to incident sixteen, only the disposition.

The crime spree continued in April 1998 when police once again stopped Shaw for driving a stolen vehicle. Apprehended after fleeing on foot through the City of Miami Shores, Shaw was charged with grand theft for incident seventeen. That charge was not pursued.

In May 1998 Shaw was arrested for incident eighteen. He had livened up his usual car theft routine by breaking the steering wheel of the vehicle in the course of hotwiring it. Shaw was charged with grand theft of a vehicle, possession of burglary tools, and obstructing justice. Between arrest and adjudication for this...